pageok
pageok
pageok
Is California's Repeal of Same-Sex Marriage an Unconstitutional "Revision" by Initiative?

I thought I'd reprise my post on this subject as well, as well as link to my colleague Professor Bainbridge's post on the initiative — Prof. Bainbridge takes the same view that I do on the revision question. Here's my earlier post, which I still think is correct.

1. Under the California Constitution, the initiative can be used for "amendments" but not "revisions":

[Art. XVIII, § 1.] The Legislature ..., two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ....

[§ 2]. The Legislature ..., two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution....

[§ 3]. The electors may amend the Constitution by initiative.

[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. And Raven v. Deukmejian, 52 Cal. 3d 336 (1990), confirmed this.

2. The proposal to allow only opposite-sex marriages is likely to be found to be only an amendment, not a revision. Raven struck down an initiative that would bar the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, as to a wide range of constitutional provisions. (Generally speaking, state prosecutions must comply with both the state constitution's bill of rights and the federal bill of rights, and while states often interpret state constitutional rights the same way as the U.S. Supreme Court has interpreted the analogous federal right, they also have the power to interpret the state rights more broadly.)

The court stressed that the proposal made "such far reaching changes in the nature of our basic governmental plan as to amount to a revision," because it "involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution," as opposed to only dealing with one specific right:

In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect. As an historical matter, article I and its Declaration of Rights was viewed as the only available protection for our citizens charged with crimes, because the federal Constitution and its Bill of Rights was initially deemed to apply only to the conduct of the federal government....

Thus, Proposition 115 not only unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution....

It is true, as the Attorney General observes, that in two earlier cases we rejected revision challenges to initiative measures which included somewhat similar restrictions on judicial power. In In re Lance W., 37 Cal.3d 873, 891 (1985), we upheld a provision limiting the state exclusionary remedy for search and seizure violations to the boundaries fixed by the Fourth Amendment to the federal Constitution. In People v. Frierson, 25 Cal.3d 142, 184-187 (1979), we upheld a provision which in essence required California courts in capital cases to apply the state cruel or unusual punishment clause consistently with the federal Constitution.

Both Lance W. and Frierson concluded that no constitutional revision was involved because the isolated provisions at issue therein achieved no far reaching, fundamental changes in our governmental plan. But neither case involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution....

3. And the two cases that I've found in other states that dealt with the same question have likewise concluded that an opposite-sex-only marriage initiative was an amendment, not a revision: Bess v. Ulmer (Alaska Supreme Court, 1999), and Martinez v. Kulongoski (Oregon Court of Appeals, 2008). Bess, in particular, expressly applied California precedents (though with a minor change that doesn't seem relevant here), and concluded that the opposite-sex-only marriage initiative was an amendment, not a revision: "Few sections of the Constitution are directly affected, and nothing in the proposal will 'necessarily or inevitably alter the basic governmental framework' of the Constitution."

4. That the proposed amendment would cut back on the scope of a state constitutional right shouldn't affect this analysis, or otherwise make the amendment unconstitutional. As the two cases cited and distinguished in the Raven excerpt quoted above show, the amendment process may be used to cut back on the scope of a state constitutional right as well as to add to the scope of such a right. (State constitutional amendments of course can't be used to cut back on the scope of a federal constitutional right, but the California Supreme Court same-sex marriage decision rested solely on the state constitution.) One point of the state constitutional amendment process is to make sure that the scope of state constitutional rights is decided by the voters in the state, not just by the seven voters on the state supreme court, especially since those seven voters themselves derive their constitutional authority from a document enacted by a majority vote of the states' voters.

Related Posts (on one page):

  1. Not so fast: Is Prop 8 an "amendment" or a "revision"?
  2. Is California's Repeal of Same-Sex Marriage an Unconstitutional "Revision" by Initiative?
  3. What Will Happen to California Same-Sex Marriages?
Kazinski:
Consider the "repeal is a revision" logic applied to the 18th and 21st amendments to the US Constitution. If they were amendments to the California Constitution then the voters could institute prohibition, but they couldn't repeal it.

If the California Supreme Court interpreted the constitution to ban gay marriage back in April, would an initiative to legalize gay marriage be a revision? Or do these things only go one way?
11.5.2008 5:24pm
deathsinger:
Okay, but what about overturning Prop 8? Would that be an amendment or a revision?

I am assuming a revision.
11.5.2008 5:25pm
FlimFlamSam:
Frankly, I disagree with the courts' interpretation of the constitution. Just because the electors have the power to "amend" does not mean they don't have the power to amend via revision.
11.5.2008 5:26pm
wooga:
Arguably, Prop8 is a revision of the recent supreme court case. But Prop8 was submitted prior to that ruling, at which time it was an amendment.

If that is the setup, is Prop8 unconstitutional?

It seems like that turns on whether you think the supreme court ruling "created" or "discovered" the right to SSM.
11.5.2008 5:44pm
Soronel Haetir (mail):
I would also say that from your description of the struck provisions that the court was protecting its own turf as much as anything related to actually differentiating amendments from revisions.
11.5.2008 5:48pm
Opher Banarie (mail) (www):
Is this what Gloria Allred's pending lawsuit going to argue?
11.5.2008 5:49pm
tvk:
I think it is fair to say that by any reasonable reading, proposition 8 is an amendment and not a revision. But as Eugene should know better than anyone else, a Supreme Court (whether federal or state) is a political court. And we already know that there are 4 votes on the California Supreme Court that are willing to place a great deal of political capital behind gay marriage. It surely cannot be too hard to "double down" given all that they have invested in this outcome.
11.5.2008 5:51pm
Robber Goose:

2. The proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision.


While the results of that amendment passing could very well be amusing, you probably should replace "same" with "opposite."

[D'oh! Fixed, thanks. -EV]
11.5.2008 5:53pm
Gene Hoffman (mail) (www):
Ignoring the 14th Amendment, doesn't this mean that by simple majority vote, the Republican Party can be banned in California?

-Gene
11.5.2008 5:54pm
SteveW:
Terminating an existing marriage is little more than cutting back on the scope an existing state constitutional right. If Prop 8 is interpreted to be retroactive, then it should be viewed as a revision. If it is prospective only, then it is an amendment.
11.5.2008 6:05pm
ReaderY:

I would also say that from your description of the struck provisions that the court was protecting its own turf as much as anything related to actually differentiating amendments from revisions.


I wquld say that the California Supreme Court was trespassing and squatting on territory that didn't belong to it.
11.5.2008 6:07pm
Splunge:
No one in his right mind should challenge Prop 8 judicially. Challenge it politically, if you must, by convincing a solid majority of Californians of your righteous cause.

Going the judicial rather than political route is exactly what landed you in this mess. Before, you might have had gay marriage enacted by statute. Now you've got to amend the constitution. Keep going and you may find yourself put in a still tighter box with still more locks on it.

The moral of the story is that people Do Not like to be told what to do, and if you try it, they'll harm your interests. Try harder, and they'll harm them more. So be warned. Start down the long difficult road of conciliation and persuasion and abandon the broad easy path to nowhere of arrogant righteousness and force.
11.5.2008 6:18pm
The General:
Why are the pro-same sex marriage people so damn afraid of persuading their fellow citizens to support their position on this issue? As we saw last night, it's because they know they'll lose! Their position isn't a majority one and will never be one, especially if they keep trying to use the courts to subvert democracy. We have a right to govern ourselves, which trumps the so-called right of "gay couples" to get married, which I might add, isn't written anywhere in the state or federal Constitution and never will be.
11.5.2008 6:21pm
The General:
Splunge is exactly correct. I'll add that calling people a bigots for disagreeing with you on a political issue is abhorrent behavior and not very persuasive.
11.5.2008 6:23pm
John A. Fleming (mail):
To amend is to clarify, to make better; or to extend. To revise is to change, in some fundamental way. I think these are the scope of these two words, as shown by Prof. Volokh's post. Admittedly, the boundary is nebulous, when does a far-reaching amendment become a revision?

Given that, I think Prop 8 is an amendment. The CaSC decided that, by conjoining several parts of existing State Constitution language, the State is required to secure the right of marriage for all. The people by an amendment have clarified this matter (while perhaps muddling others).

Unfortunately, of course, improved clarity does not always equate to desired outcomes under the law. But it does make the connection between outcomes and the law more easily recognized. This then makes it easier to evaluate proposed changes to the law. (The law as a journey to an unknown destination by an uncertain route: backtracks and missteps are to be expected, for who among us knows the certainly right way?)
11.5.2008 6:31pm
ROgi (mail):
General: According to your logic, miscegenation, which was not the majority position in Virginia in the 50s, should have been left to the voters? Did the Lovings subvert democracy by going through the courts? I am not arguing specifically for same-sex marriage, but your version of democracy where minority has no recourse against abuse by the majority is patently offensive.
11.5.2008 6:33pm
CDR D (mail):
heh heh heh

Take it to court. Let another arrogant judge wave his weenie at the people.

I love it. This is just the sort of thing the people need to encourage them to sharpen their pitchforks.

Bring it on.
11.5.2008 6:52pm
ROgi (mail):
Some people don't even need encouragement. They got their pitchforks ready and use them frequently to prevent rusting.
11.5.2008 6:55pm
smitty1e:
@The General:
Not unlike calling me a racist because I respectfully disagree with POTUS-elect Obama's policy approaches.
11.5.2008 7:22pm
John A. Fleming (mail):
Is there a raging dichotomy here? On one side, are the folks who think it's OK for the Courts to "find" new rights based on evolving community standards, and mandate that the people's government secure those rights; in effect that Courts have the power to levy a new tax on the people without legislative action.

(Based on the theory that our rights are God-given and inalienable, and we choose which rights we empower our government to secure, or prohibit our government from infringing.)

On the other side are the folks who view the securing of rights as legitimate only when approved by legislative or plebiscite action.

(All based on the theory that our rights are God-given and inalienable, and we choose which rights we empower our government to secure, or prohibit our government from infringing.)

Is it possible to define a test that the Courts first have to meet, before they can mandate the securing of a right? There seems to be rough consensus that Loving met that test, although after the fact. Which side of this test are SSM and Prop8 on? There's obviously now no consensus that the CaSC met that test.
11.5.2008 7:59pm
armchairpunter:
Just how far do you think you'll get with the premise that same-sex marriage is a God-given right?
11.5.2008 9:16pm
Down from the Ivory Tower:
Eugene:

Petitioners' brief, if you read it, is not limited to the Raven argument concerning courts' inherent power. That is merely one instance of revision. Revision also occurs when a purported amendment seeks to upend a core principle of state government. It seems to me that allowing a bare majority to repeal the fundamental right of a suspect class strikes a blow at the very heart of equal protection. Note to Prop. 8 folks: Keep the bubbly on ice for now.
11.5.2008 9:19pm
m. croche (mail):
EV: "One point of the state constitutional amendment process is to make sure that the scope of state constitutional rights is decided by the voters in the state, not just by the seven voters on the state supreme court, especially since those seven voters themselves derive their constitutional authority from a document enacted by a majority vote of the states' voters."

Please. If Prop 8 is indeed found to constitute a constitutional revision, there's a process to get it enacted. Revisions, too, are "decided by the voters in the state, not just by the seven voters on the state supreme court." Voters elect legislators, voters go to the polls.
11.5.2008 9:24pm
Steve:
Prof. Volokh, I believe the Michigan Supreme Court addressed a similar issue earlier this year.
11.5.2008 9:40pm
YabbaDabba:
The core of the argument in the complaint filed today by the ACLU and others is that Prop. 8 is a revision because it 1) eliminates a fundamental right - the right to marry - to only a subset of CA citizens (gays and lesbians) who have been historically subject to discriminatory treatment; 2) substantively changes the CA constitution's underlying principles of individual equality on an unprecedented scale and scope; 3) prohibits CA courts from exercising their traditional role of protecting the established equality rights of a minority defined by a suspect classification; and 4) effects a far-reaching change in the nature of CA's governmental plan.
11.5.2008 10:07pm
Christopher Phelan (mail):
Before Loving, the set of people a black man could marry (if they other party so wished) was different than the set of people a white man could marry. That's a violation of equal protection.

The set of people a gay man can marry (again assuming the other party so wishes) is exactly the same as the set of people a heterosexual man can marry. No violation of equal protection.
11.5.2008 10:22pm
Splunge:
According to your logic, miscegenation, which was not the majority position in Virginia in the 50s, should have been left to the voters?

Correct. The fact that the ends may have been judged desirable at some later time does not make the means acceptable. The principle of the sovereignty of the people is far more important than whether x can legally marry y or must, boo hoo, live in sin and construct explicit contracts to secure his family structure the way he wishes.

Furthermore, even on practical grounds, as stuff like Prop 8 and Roe or for that matter Dred Scott makes clear, judges have an amusing tendency to make politically tin-eared decisions that serve only to lengthen and embitter a difficult process of gradual social change. I think what the modest majority vote on Prop 8 suggests is that, had the proponents of gay marriage in California proceeded politically, through persuasion and conciliation, instead of with the juvenile grandstanding of Gigolo Gavin Newsom, followed by the arrogance of the courts, there's a good chance gay marriage would quietly be the law of the state now. But they didn't, they chose the in-your-face approach, and the result is a massive setback. Dumb.

Did the Lovings subvert democracy by going through the courts?

I'd love to see the chain of "logic" by which a court decision overturning the will of a popularly-elected legislature can be defined as "democracy." Or are you one of these post-modern post-rationality it depends on what the meaning of "is" is folks for whom "democracy" is defined purely cynically, as "the system that produces the outcome I like?"

your version of democracy where minority has no recourse against abuse by the majority is patently offensive.

So, you're a closet monarchist or totalitarian? Wishing for a Big Daddy somewhere to whom you can always appeal when all the other kids meanly vote to take your toys away?

Friend, the principle of a republic is that the majority rules, subject only to those minority rights which are written down in the Constitution. Those rights are your only defense, if you are so obnoxious or stiff-necked that you can't figure out how to compromise enough with your neighbors and fellow citizens to live and let live.

If you discover a new right that you'd like included, you have available to you the process of amendment. If that's not good enough for you, you're invited to start a revolution in the country of your choice (not including this one) and build a better system. Consideration of the French in 1789 and the Russians in 1917 might give a reasonable person pause, but I'm sure it won't dissuade someone as smart as you. Lead on, Plato. Good luck at the barricades.
11.5.2008 10:24pm
YabbaDabba:
As a sidenote, Splunge's legal brain is lying fallow in some manure on a farm in between 1805 and 1851.
11.5.2008 10:29pm
David Schwartz (mail):
Before Loving, the set of people a black man could marry (if they other party so wished) was different than the set of people a white man could marry. That's a violation of equal protection.

The set of people a gay man can marry (again assuming the other party so wishes) is exactly the same as the set of people a heterosexual man can marry. No violation of equal protection.
The set of people a man can marry is now not the same as the set of people a woman can marry. How is this not a violation of equal protection?

Surely you can't be as dense as the above appears. What subtlety am I missing?
11.5.2008 11:53pm
josil (mail):
I voted No on Prop 8 but would gladly sign a petition to recall Justice George...as I did Rose Bird, and for the same reasons. For those with a more emotional attachment to this issue, I'd suggest that same sex marriage in California is not quite the same as slavery, regardless of the over-the-top TV ads.
11.6.2008 12:02am
\m/:
Ugh, the number of freepers on this site is absurd. I don't know why I even bother reading comments here.
11.6.2008 12:05am
Gene Hoffman (mail) (www):
The majority asks that the state encode their (recent religious) preferences in a state licensing scheme which limits the privileges of a minority group who have been persecuted for inherent or chosen associations.

Sounds like a liberty interest to me.

One interesting factual point for the no on 8 folks is that the last time equal protection under the CA Constitution was limited it required the revision process to carve the school segregation plans out.

-Gene
11.6.2008 12:13am
KWC (mail):
Eugene:

Thanks for the analysis. But what I think you are missing is that in neither Bess nor Martinez had the state constitutions involved already been interpreted to include sexual orientation as a protected class. So while in those cases only the right to marry was at issue, here, if Prop. 8 is to be treated as just an amendment, it would conflict directly with the equal protection clause. That is, it would tend to undermine the status of sexual orientation as a protected class, which has much more far-reaching impacts than just the marriage issue.
11.6.2008 12:50am
John A. Fleming (mail):
armchairpunter: "Just how far do you think you'll get with the premise that same-sex marriage is a God-given right?"

Free association, especially to love and cherish, is a God-given right. To the Mormons and Muslims, polyamory was/is a blessing.

We choose not to secure the rights of certain Mormons and Muslims to follow their faith. In fact, we have made it illegal. It is a legal choice, in that we don't want to spend our hard-earned wealth on the vexing legal issues that polyamory brings. So we outlaw, or at best ignore it.

Ultimately, societies do make choices about what kinds of rights are secured and helped by the law, what rights are not helped by the law, and what actions are outlawed. These choices usually follow majority cultural norms. Life sometimes isn't fair, and the government sometimes can't make it fair. Cultural norms, except during revolutions and conquest, change slowly.
11.6.2008 1:03am
David Schwartz (mail):
I'd love to see the chain of "logic" by which a court decision overturning the will of a popularly-elected legislature can be defined as "democracy."
That this court exists and has jurisdiction to make this decision is the result of the a Democratic process. Part of a Democratic process is procedural. The voters don't just automatically get everything 51% of them want at any particular instant.

Or are you one of these post-modern post-rationality it depends on what the meaning of "is" is folks for whom "democracy" is defined purely cynically, as "the system that produces the outcome I like?"
Democracies product good and bad results on various issues every single day. But one of the things Democracies can do restrain the ways a majority can exercise its power. Not everything a Democracy does is the *direct* result of a vote. The much later indirect results of votes held long ago are part of the things Democracies produce as well.
11.6.2008 2:21am
MCM (mail):
LEAVE OUR TRADITIONAL FAMILIES AND MARRIAGES THE WAY GOD DESIGNED THEM
Maria, how does my dad — who is gay — getting married in any way affect your family and marriage? How is his personal decision anything but leaving you alone?


Obvious; it's causing her caps lock key to malfunction.

I see. So for the 150 years or whatever California has been a state, all the other SC terms the court just missed that part of the constitution? Were two pages stuck together, say, or one of the pages had writing on the back and they just missed it all those years? Don't you just hate when that happens?

This is what conservatives mean when we talk about judicial activism. A living constitution is no constitution at all, it's just rule at the whim of whomever currently resides on the court.


I am so tired of the intellectual dishonesty of this argument. "Judicial activism" (in the pejorative sense) is almost always invoked when the writer disagrees with a court's decision for his own personal and political reasons, which is precisely the reason that "judicial activism" is supposed to be so bad. DC v. Heller is a perfect example. The entire concept is nothing more than a PR campaign, incoherent rhetorical nonsense.
11.6.2008 2:28am
tsotha:
I am so tired of the intellectual dishonesty of this argument.

I don't find intellectual dishonesty at all. You've constructed something of a strawman here, assuming my views regarding judicial activism are inconsistent without any reason to make that assumption. From my perspective you're just trying to cloud the waters from an indefensible position.

I'm an originalist. I believe the words in a legal document mean what they meant when it was ratified. There's no point in having a written constitution if you're going to change the meaning of the words to advance policy goals. Policy is set by the legislature - that's what it's for. You can make the argument society changes over time. Well, fine then, you shouldn't have any trouble getting an amendment passed to change the text.

I realize advocates of same-sex marriage really, really, really, really, really want it to be a right enshrined in the California constitution. But it never was in the past, and since the text didn't change in that regard it still isn't. Personally I would rather have seen an amendment removing the judiciary from the question, and I think putting policy into your constitution is a bad idea. But you can hardly blame the voters, who have now voted on this for the third time without seeing their wishes respected.

As I've said in other places, I'm pretty sympathetic to the cause, and I support legislators who intend to push for laws recognizing same-sex unions, which seem to be inevitable in my opinion. But the fight needs to take place in the legislature. A judicial imposition is illegitimate.
11.6.2008 3:01am
David Schwartz (mail):
I'm an originalist. I believe the words in a legal document mean what they meant when it was ratified.
That doesn't mean what you think it means. For example, when the framers of the Constitution called for "due process", they didn't mean whatever process they felt was due. They meant whatever process was *actually* due. So as soon as new processes are discovered to in fact be due, by original intent they are now discovered to be guaranteed by the Constitution.

This is what the founders meant -- they meant what process is actually in fact due, not what they happened to feel was due at that moment right or wrong. If they meant those specific things they felt were due, why not say so?

I reject original intent for another reason. All that could be agreed upon was the text. In many cases, a legislature can agree on a set of words but cannot agree on what they mean. I doubt those who agreed on "due process" could have agreed on precisely what process was due. So it is pure sophistry to imagine there was some set of processes that they agreed were due when they agreed to "due process".
11.6.2008 4:28am
David Schwartz (mail):
To put it simply, they framers agreed that if one could show that some process was due, one had shown that one was entitled to it. They expressed no opinion on which processes were due or which weren't and they certainly expressed no intent, nor made any attempt, to enshrine their various disparate opinions on such into semi-permanent law.
11.6.2008 4:30am
Zoe E Brain (mail) (www):
The insertion into the constitution is:

A marriage between a man and a woman is the only legal union that shall be valid or recognized in this state.

So Civil Unions are invalid too. The only legal union is marriage, and that must be between a man and a woman.

Or have I missed something here?
11.6.2008 4:31am
Zoe E Brain (mail) (www):
As you were... the final wording is crucially different.

Only marriage between a man and a woman is valid or recognized in California.
11.6.2008 5:15am
Brad Ford:
Give the California judges any excuse to impose their vision on residents, I expect the will take it and rule against Prop. 8.

Question: Can a Constitution ever be unconstitutional?

With respect to judicial activism, I am expecting that ruling someday.
11.6.2008 8:04am
fw (mail):
The comments here are as interesting as the original post. great!

I especially appreciated the back and forth posted by SPLUNGE

questions to SPLUNGE:

The legislature had voted twice to sanction gay marriage and was vetoed by the governor who stated he did so precisely because he felt that the supreme court should decide. These being the facts, in what sense is it true that the court overruled popular will exercised through the state legislature?

I have however a much more fundamental question:

is the lurking argument, merely exposed here on the subjects of gay marriage and abortion, really about the difference between small-r republicanism and small-d democracy?

Under small-r republicanism, constitutions exist precisely and only to limit the power of government and not to enumerate "rights" for the people. The idea here is that the people reserve ALL rights not specifically granted to the government.

It does seem to me that true "conservatives" naturally would favor the "Rule of Law" (republicanism) rather than the "rule of men" (pure democracy) as a force of political direction would it not?

it does also seem to me that institutional large R republican conservatism as increasingly leaned into the idea of small-d democracy to get their way and , suprisingly, display a willingness to throw small-r republicanism under the bus.

This explains some considerable confusion. for example movement Republicans had to remain largely silent when Oregon democratically decided in favor of Euthanasia by ballot proposition. This struck me as strange to the point of questioning the fundamentals I have tried to express here.

anyone have any thoughts on this?

In summary, the real meat of the debate here is a debate between those who favor small-r republicanism or small-d democracy. The fact that this has not been made clear has made the labels "conservative" and "liberal" seem blurred beyond usefulness. There is also a great confusion as a result between desired ends and proper process that will not be cured by a debate on how to read the constitution. the debate needs to begin before a debate on the wording of the constitution.
11.6.2008 8:06am
esteban J (mail):
The California Supreme Court has itself recently said:

"For a revision to be found, "it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]" (Legislature v. Eu, supra, 54 Cal.3d at p. 510, 286 Cal.Rptr. 283, 816 P.2d 1309.)"


Since no reasonable person can conclude that a ban on gay marriage, which affects the right of marriage and nothing else, amounts to a "substantial alteration of the basic governmental framework", then there should be little doubt that the CSC will reject the challenge to Prop 8.


Though of course that same court just 6 months ago wrongly ruled that the cali-constitution mandated gay marriage rights, so who among us could be surprised if it screws up again?
11.6.2008 8:06am
Christopher Phelan (mail):
Sorry to be so late in the thread.

Yes, the set of people a man can marry is different than the set of people a woman can marry under traditional marriage law. But the 14th amendment equal protection clause has always been (correctly) seen as being far more strict when it comes to race than sex. The set of bathrooms a man can use is different than the set of bathrooms a woman can use and no one (ok, almost no one) considers that a violation of the equal protection clause, although almost everyone would if the set of bathrooms a black man could use was different than the set of bathrooms a white man could use.

This is the reason that I hardly ever see the argument for gay marriage using the equal protection cause as being that it discriminates on the basis of sex, as opposed to discriminating on the basis of sexual preference. My point was that traditional marriage law provides equal protection to gay men as straight men. I guess I should have added that it doesn't treat men and women equally, but on many things, that has always been considered ok, and no one sees this as an equal rights for man vs. women issue, but an equal rights for gays vs. straights issue.
11.6.2008 8:15am
jrose:
Prop. 8 [..] would tend to undermine the status of sexual orientation as a protected class, which has much more far-reaching impacts than just the marriage issue.

It seems to me that Proposition 8 only impacts marriage, leaving sexual orientation as a suspect classification.
11.6.2008 8:29am
jrose:
I'm an originalist. I believe the words in a legal document mean what they meant when it was ratified

Do you disagree with Perez?
11.6.2008 8:35am
David Schwartz (mail):
The set of bathrooms a man can use is different than the set of bathrooms a woman can use and no one (ok, almost no one) considers that a violation of the equal protection clause, although almost everyone would if the set of bathrooms a black man could use was different than the set of bathrooms a white man could use.
To try to take this analogy seriously is to see its absurdity. There is simply no comparison between being unable to use the public bathroom of one's preference and being unable to marry the person of one's preference. In fact, when such bathroom restrictions do cause people any significant hardship or limitation, the restrictions are not enforced.

This is the reason that I hardly ever see the argument for gay marriage using the equal protection cause as being that it discriminates on the basis of sex, as opposed to discriminating on the basis of sexual preference.
That's not the reason. The reason you don't see it is because it's the refutation to an argument nobody can make with a straight face. The only reason I brought it up is because someone actually made that silly argument.

My point was that traditional marriage law provides equal protection to gay men as straight men.
Does a law permitting anyone to worship Christ as they please but not Jehovah affect Jews and Christians alike? Again, surely you can't be as dense as the above appears. What subtlety am I missing?

I guess I should have added that it doesn't treat men and women equally, but on many things, that has always been considered ok,
Actually, no. It's seen as very weak and tenuous, and it always yields to significant privacy or freedom rights. The only times it doesn't yield is when you really are trying to force someone to interact with you intimately in a way they don't want to.

and no one sees this as an equal rights for man vs. women issue, but an equal rights for gays vs. straights issue.
Exactly. That's the other reason that the argument that this affects gay mean and straight men alike is so silly. It says that this is an issue of equal rights for men vs. woman, since the standard is what the set of people you are allowed to marry is, regardless of whether you could ever want to marry them or not.

Thank you for refuting your own argument a different way.
11.6.2008 8:52am
ROgi (mail):
"I'd love to see the chain of "logic" by which a court decision overturning the will of a popularly-elected legislature can be defined as "democracy.""

The chain of logic which allows for judicial review and checks and balances, of course.

"Or are you one of these post-modern post-rationality it depends on what the meaning of "is" is folks for whom "democracy" is defined purely cynically, as "the system that produces the outcome I like?"

No, that would generally be the same people who bemoan freedom of speech and association, for example, unless it benefits them (e.g. Boy Scouts of America et al. v. Dale). And, while I generally do not agree with the ideology behind some of those decisions, I agree with the result.

"So, you're a closet monarchist or totalitarian? Wishing for a Big Daddy somewhere to whom you can always appeal when all the other kids meanly vote to take your toys away?"

Since you decide to resort to this infantile analogy/ad hominem, I'd like to see an example of toddler vote to take toys away (I thought usually the lone bully does it). Under a totalitarian regime the minority has no legal recourse. Peddle your rhetoric somewhere else Splurge.
11.6.2008 10:05am
Missing Something:
If one assumes marriage to be a religious exercise, could someone explain to me how Prop. 8's language does not violate the establishment clause of the U.S. Constitution?
11.6.2008 10:12am
Missing Something:
Part 2:
I am also uncertain here if the First Amendment can be incorporated against the state of California in this fashion. Has that question been answered somewhere I don't know?
11.6.2008 10:24am
ROgi (mail):
Because marriage is not necessarily a religious exercise. I don't know what you mean by "incorporated against the state," as the First Amendment is incorporated through 14th amendment and not "against" any state in particular. I don't doubt, however, that the ban to same sex marriage will be challenged in federal courts.
11.6.2008 10:34am
cbyler (mail):

Friend, the principle of a republic is that the majority rules, subject only to those minority rights which are written down in the Constitution.

For example, the Equal Protection Clause, which was the basis of the holding in In re Marriage Cases.

If the Equal Protection Clause could be revoked at will (or a specific disfavored group excluded from its protection on a specific issue, which is precisely what Prop 8 *must* do to have any effect at all) by 51% of voters, why have it at all? It exists to prevent precisely the kind of unequal law that Prop 8 and its predecessor are.

Since no reasonable person can conclude that a ban on gay marriage, which affects the right of marriage and nothing else, amounts to a "substantial alteration of the basic governmental framework", then there should be little doubt that the CSC will reject the challenge to Prop 8.

I'm rather disgusted to find someone who apparently thinks that the Equal Protection Clause isn't part of the "basic governmental framework".

By denying a specific fundamental right to a specific disfavored class, Prop 8 plainly, on its face, conflicts with the Equal Protection Clause. (Unless you want to reargue In re Marriage Cases, which I doubt the CSC would permit - or change their result if they did.) The only way to interpret it as anything other than a nullity is to say that it creates the Equal Protection Except For Them Clause. Do you want to try to defend the proposition that that isn't a substantial alteration? It plainly subverts the primary purpose of the EPC, and if Prop 8 stands, the EPC is essentially a dead letter.

(Nobody's mentioning the US Supreme Court and the federal EPC which Prop 8 clearly lacks the authority to override - I suppose that's because we all agree that the very right-wing USSC will find some way to avoid the reasoning of In re Marriage Cases and the Connecticut case following it?)
11.6.2008 10:44am
thirdwaver:
America is a republic, not a democracy. The forefathers did this intentionally to protect everything they were setting up from the "uninformed masses". I don't think it's a judge's job to do the will of the people. I think it's his/her job to make sure the masses do not easily modify documents which are the root of this country's principles. I personally can't believe that it doesn't take a 2/3 majority to remove an important legal right from a small minority in the state.

One last thing: I always find it humorous that when some people talk about marriage, they imagine birds chirping, churches, white dresses, priests, and roses but when they talk about divorce, it's lawyers and "don't let that %$#@ take half my stuff." The fact is that marriage creates a legal entity and divorce dissolves it. Simple as that. The pro 8 people have made this an assault on God and humanity itself and the No on 8 people didn't do a good enough job of making the point that this is a "just" a legal relationship, imho. They allowed the pro folks to make this about the ceremony instead of the actual relationship.
11.6.2008 11:21am
einhverfr (mail) (www):
In my state (Washington), this sort of initiative will never be possible.

1) Initiatives can't have two parts.
2) Initiatives can't amend the State Constitution.


Seems like California needs to move away from direct democracy and towards a Washington-style democratic republic :-)
11.6.2008 11:22am
einhverfr (mail) (www):

Ignoring the 14th Amendment, doesn't this mean that by simple majority vote, the Republican Party can be banned in California?


Or for that matter, the electorate could perhaps pass a Constitutional Amendment making adultery a felony if one party is an elected official? Honestly, that seems more constructive and better at protecting society than worrying about gay marriage.
11.6.2008 11:36am
Brad Ford:
Ignoring the 14th Amendment, doesn't this mean that by simple majority vote, the Republican Party can be banned in California?

Or for that matter, the electorate could perhaps pass a Constitutional Amendment making adultery a felony if one party is an elected official? Honestly, that seems more constructive and better at protecting society than worrying about gay marriage.


Yes and no, California could ignore the US Constitution (and many US Supreme Court rulings) and outlaw all abortions. Under California law (and its Constitution), it might just be legal. BUT - we all know how that would turn out in the end.

Regardless of the merits of this particular provision, all states laws must past two tests:
1. They must not violate the state's constitution; and
2. They must not violate the US Constitution (and sometimes federal law).

With respect to this issue, the first step is to determine if it is legal/constitutional under California law.
If the answer is no, the proponents will go back to the drawing board.
If they answer is yes, the opponents can try to assert there is a right to gay marraige under the US Constitution. That issue goes beyond California.
11.6.2008 11:56am
Tulkinghorn:
The amendment via majority vote seems to invite all sorts of political mischief in response. Why not submit an amendment abolishing all straight marriages? It would never pass, but it would put the bluenoses on the defense if they had to defend their marriages every two years ad infinitum.
11.6.2008 11:57am
Steverino (mail):
"Why are the pro-same sex marriage people so damn afraid of persuading their fellow citizens to support their position on this issue? As we saw last night, it's because they know they'll lose!"

Why are the anti-same sex marriage people so damn afraid of the California Supreme Court ruling that Prop 8 is a constitutional revision, thus tossing it out and ordering the state legislature to vote on a same-sex marriage ban (requiring a 2/3 majority) before it can be placed on the ballot for the electorate to decide? It's because they know they'll lose!
11.6.2008 12:02pm
einhverfr (mail) (www):
Currently, it looks like the California Attorney General is interpreting the ban as non-retroactive. Hence the government will presume to continue to honor marriages already officiated in the state regardless of the ban, and would presume to extend full faith and credit to other states.

Does this mean the supporters of the amendment are how going to have to sue to government to annul all these marriages? If so, how could they have standing to bring such a suit?
11.6.2008 12:03pm
JTW (mail):
The key distinction between Prop 8 and the OR and AK cases should be clear to anyone who has read In Re Marriage Cases.

In OR and AK, the ballot measures didn't remove rights from a group of people who already possessed them. But Prop 8 purports to do just that. The distinction between the legal effect of these measures creates a novel set of questions regarding the meaning of equal protection under the CA constitution.

In OR and AK, the affected minorities shared an identity of interest with the affected minority in CA. But they didn't share either the same set of fundamental rights or the special judicial protection afforded to suspect classes. Because the minorities in OR and AK weren't already equal under their respective constitutions, deciding whether those ballot measures were amendments or revisions was an easy question.

Prop 8 raises an entirely different issue, because it constitutes the first time in California history (and possibly U.S. history) that equal protection has been altered by 50+1 to withdraw a fundamental right from a group of persons while others continue to enjoy that same right. (What's even more disturbing is that the group of persons affected by Prop 8 constitute a suspect class, and that the measure itself draws distinctions based on that very ground.) This directly contravenes the longstanding principle that equal protection exists to prevent the majority from imposing on the minority that which it would not accept for itself.

Regardless of one's view of either marriage or the legitimacy of In re Marriage Cases, the constitutional principles at stake here are legion. Ergo, revision and not amendment.
11.6.2008 12:04pm
KWC (mail):
JTW: I hope the legal teams involved here see that.
11.6.2008 12:08pm
esteban J (mail):
JTW wrote:

"In OR and AK, the ballot measures didn't remove rights from a group of people who already possessed them. But Prop 8 purports to do just that. The distinction between the legal effect of these measures creates a novel set of questions regarding the meaning of equal protection under the CA constitution."

I'm not sure why. To my knowledge, there's nothing in the CA constitution that says amendments can only be used to expand rights rather than contract them. Using that logic, if the drinking age was currently 21, it would be permissible to use the amendment process to extend the drinking age down to 18, but then at a later date you couldn't do so, you'd need to go to the revision process, to change it back from 18 to 21. That seems nonsensical on its face.

Beyond that, i think you are forgetting what a "revision" is. As the CSC said in 2003:

"For a revision to be found, "it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution." See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834."

No matter what your view on gay marriage, one has to concede that removing the right to marry from gays cannot reasonably be construed to constitute a substantial, basic alteration in the governmental framework of the state. Ergo, prop 8 is an amendment, not a revision.
11.6.2008 1:15pm
einhverfr (mail) (www):
JTW-- there is only one issue I can see with your reasoning. IANAL....

Currently, the California Attorney General is saying that the ban is not retroactive. This seems to my lay analysis to be the safe course. Nobody really can have standing to challenge the fact that you are refusing to harm others unless you can show you are harmed by the action. This seems that it is designed to prevent people from suing over the initiative.

Of course the City of San Francisco is ignoring the initiative. I am not really sure if someone can have standing to make such a suit against them either.....
11.6.2008 1:35pm
JTW (mail):
Esteban,

I worry that you have misunderstood my point.

Take your drinking age example: Lowering the drinking age to 18 from 21 gives the same rights to and imposes the same obligations on 100% of Californians, without drawing classifications between them. Raising the drinking age to 21 from 18 does the same thing, likewise without drawing classifications between them.

But this is not the situation we have here. To continue using your example, Prop. 8 raises the drinking age to 21 from 18 for only some Californians, while leaving the drinking age at 18 for the remainder of the population. It is this change that requires a "revision" and not an "amendment."

The basic, foundational principles of equal protection require that the drinking age rules must apply universally to all Californians. If some Californians get to drink at 18, then all Californians get to drink at 18. But these foundational principles of equal protection do not permit one group of Californians to enjoy a lower drinking age than another group. So it is hard for me to see how the principles of equal protection are not "substantially alter[ed]" by a rule that subjects one group of Californians to a different drinking age.

This is the very situation that we have here--just plug in "marriage" for "drinking age," and you will inevitably arrive at the conclusion that I did in my earlier post.

My sneaking suspicion is that you don't believe that same-sex marriage was ever legitimately recognized in California, and that you view Prop. 8 as intended to "restore" the law to a pre-In re Marriage Cases state. For better or for worse, such an ideological view fundamentally distorts the constitutional question presented in this case.

Regardless of how any one of us feels about same-sex marriages, they were legal in California for several months. Calling them "counterfeit" or putting them in scare quotes (i.e., same-sex "marriage") doesn't change the fact that these civil arrangements were fully legal, even if only for a time. To continue using your example, then, In re Marriage Cases "lowered the drinking age to 18" for 100% of Californians.

Prop. 8 purports to "return the drinking age to 21" for same-sex couples while keeping it at 18 for everyone else. But this contravenes the foundational constitutional principles of equal protection that In re Marriage Cases cited to "lower the drinking age" for all Californians. Because there is no constitutional tradition of "amending" those legal principles at the whim of a 50+1 majority, and because permitting the 50+1 majority to do so now would "substantially alter" those legal principles, those legal principles have not been amended, they have been revised.
11.6.2008 2:10pm
einhverfr (mail) (www):

Calling them "counterfeit" or putting them in scare quotes (i.e., same-sex "marriage") doesn't change the fact that these civil arrangements were fully legal, even if only for a time.


According to the California Attorney General, they are still fully legal, because he argues that the ban is not retroactive.
11.6.2008 2:15pm
JTW (mail):
Agreed, but many of the proponents of Prop. 8 refuse to acknowledge this fact. Because they believe that the CA Justices lack authority to interpret the CA Constitution, they believe that any same-sex civil marriages that resulted from In re Marriage Cases are not "real" marriages--and never were. They have come up with several clever shorthands to telegraph this belief. "Counterfeit marriage" ranks among my favorites.
11.6.2008 2:24pm
einhverfr (mail) (www):
JTW, but the question of enforceability arises.

Who could actually have standing to sue the city of San Francisco aside from the State of California? In all likelihood it would be something that could be brought up in support of a desire to have the marriage annulled (as opposed to a divorce), or am I missing something?
11.6.2008 2:49pm
Chicago GOP:
The people have spoken, and there stance was to protect the sanctity of marriage.
11.6.2008 3:55pm
KWC (mail):
Chicago GOP:

Be careful with facile conclusions. Several thousand would-be "NO" voters, accidentally voted "YES" because they were confused which way was which.

Also, many people who meant to vote "YES" and did vote "YES" did so not necessarily "to protect the sancitity of marriage." Many did it because they were confused (well, deceived, really) into believing that Prop. 8 had something to do with education and religious freedom.

By the way, Chicago GOP, the people have indeed spoken. OBAMA baby!!!
11.6.2008 4:32pm
Stephen Clark (mail):
Although I'm intuitively sympathetic to Eugene's result here, I don't find his argument very persuasive at all.

Since when does a good legal analysis rest exclusively on the formalistic parsing of language in previous court decisions? (Are we even certain that Lance W. and Frierson truly survived Raven fully intact? As I read the decisions, the later decision seemed a bit skeptical about the lenience in the earlier decisions.)

What's the substantive, not formalistic, rationale for treating Prop. 8 as either a "revision" or an "amendment," Eugene? One obvious rationale for treating Prop. 8 as an "amendment" is unacceptable--the result-oriented objection of conservativess to same-sex marriage and love of Prop. 8. That rationale pervades some of the comments on this board, either obviously so or just beneath the surface.

But what was the public policy objective animating the ban on revision by initiative? Is that public policy objective implicated here? Come on, Eugene, you can do better than the formalistic legal reasoning of a 1L!

Keep in mind that Prop. 8 is a rather extraordinary measure: at once depriving what the California Constitution regards as a suspect class of something the California Constitution regards as a fundamental right. (In re Marriage Cases.) Because the court has deemed gays and lesbians a suspect class and marriage (including same-sex marriage) a fundamental right, holding that Prop. 8 is a mere "amendment" is constitutionally indistinguishable from characterizing as a mere amendment a measure to strip blacks of the right to vote. Would such a measure implicate the evil against which the ban on revisions by initiative was aimed? (I don't know, but a satisfactory answer requires way more than Eugene's puny formalism.)

To the extent that the distinction between a "revision" and an "amendment" is designed to require greater deliberation as to certain matters, the critical questions are which matters and why? I can certainly imagine requiring greater deliberation when the question is whether to strip a suspect class of a fundamental right. For comparison, those same factors are reasons why the U.S. Supreme Court chooses to apply specially probing judicial review to the work product of the democratic process.

My initial, uninformed reaction was that an attempt to challenge Prop. 8 as a "revision" was ridiculous. But after reviewing the caselaw and, more importantly, thinking about the potential policy underlying the ban on revision by initiative, I decided the challengers had a stronger argument than I initially thought--or that Eugene's gives them credit for.
11.6.2008 4:55pm
Sam Weintraub (mail) (www):
I am not sure it is a good precedent for the electorate to over-turn a Supreme court decision.

A function of a progressive democracy is to keep the Church separate from the State.

Why should the will of a slight majority impose their way of life on a minority? Isn't it denying the same as previous laws to deny women the right to vote or for African Americans to have rights to be equal citizens?

While we have taken two steps forward by electing an African-American President, Prop 8 is a retrograde step that takes us a step backwards.

I do hope California does not lose its liberal credentials and the ban on gay-marriage is reversed.

Sam
11.6.2008 5:26pm
einhverfr (mail) (www):
IANAL, etc....

I think that this is likely to end up hinging on issues relating to the US Constitution, which means that it will almost certainly end up at the US Supreme Court. There are a few outstanding questions relating to:

1) What is Congress's role in determining what full faith and credit means? Can a state annul categories of marriages even if that is done in another state? Does that run afoul with the full faith and credit clause? Did DOMA exceed Congress's powers here?

2) What happens to marriages and civil unions now?

My prediction is that the CA supreme court will rule soon on the second issue only, and that for this purpose the ban is Constitutional and not retroactive. In other words gay married couples are still married under CA law. This will probably require a lawsuit against the city of San Francisco in this issue. Furthermore, my guess is that a decision of this nature will not be revisited by SCOTUS.

The first issue is more tricky and will take maybe a few more decades before someone with standing is able to present the case. After all, it would probably take a gay married couple (for example, married in Mass.) to move somewhere like California, file for things as a married couple, and then sue when they are told they don't qualify. The Supreme Court could look different then but consier Romer and Lawrence as hints as to how the court might rule.....

I personally find it remarkably likely that the court would rule that gay marriage is subject to full faith and credit, and that Congress can't selectively allow marriages to be invalidated when people move across state lines. I further think that even J. THomas is likely to be sympathetic to this argument.
11.6.2008 5:39pm
David Schwartz (mail):
But this is not the situation we have here. To continue using your example, Prop. 8 raises the drinking age to 21 from 18 for only some Californians, while leaving the drinking age at 18 for the remainder of the population. It is this change that requires a "revision" and not an "amendment."
This is pure sophistry. What does it mean to raise the drinking age from 18 to 21 for a 30 year old? This is just as meaningless as arguing that after proposition 8, the set of people a heterosexual can marry is the same as the set of people a homosexual can marry.

In fact, the situation with a drinking age change is precisely analogous and the same calculus should be used in both cases. How compelling is the State interest? (Slightly in the case of drinking ages, not at all in the case of gender discrimination in marriage.) How serious is the affect on fundamental rights? (Slightly in the case of drinking ages, massive in the case of being unable to marry anyone from the set of people you could fall in love with.)
11.6.2008 8:02pm
JTW (mail):
"Pure sophistry?" Fine.

There's a simple fix to the hypo that I adopted from Esteban. Group X can drink at age 21. Group Y cannot drink at all. Constitutional equal protection principles require that, if Group X is permitted to drink at age 21, then Group Y must also be permitted to drink at age 21. Proposition Z says that, despite the equal protection guarantees at issue, Group Y is no longer permitted to drink at all, but Group X still can. This substantially alters the meaning of equal protection, thus rendering Proposition Z a "revision" and not an "amendment."

(It is not clear from your post whether you consider Prop. 8 to constitute an "amendment" or a "revision." But reading between the lines of your parentheticals, it seems as though we are on the same side of this argument, at least as to the core issue of same-sex civil marriage. Please read more carefully next time.)
11.6.2008 8:17pm
einhverfr (mail) (www):
Splunge:

What role do you see the courts as playing when it comes to laws regarding equal protection under the laws?

I guess it comes down to a fundamental question: Do we have a government which is solely answerable to the voters? Or is it answerable to the laws which establish it as well?

If solely answerable to the voters, should the voters be able to enact total firearm prohibitions? Why would that be different from mixed-race marriages?
11.6.2008 8:24pm
tsotha:
jrose,

I think Perez was wrongly decided. Not a fan of miscegenation laws, but if you think something ought to be in the constitution, then put it there. Once you go around a system you can't go back. Do "living constitution" supporters think the document will always grow in the direction they approve?
11.6.2008 8:35pm
einhverfr (mail) (www):
tsotha:

What exactly does the 9th Amendment mean? Why was it put there?

For that matter, do you think that the word "Liberty" in the 4th Amendment means the same today as it did in 1789? What about in the 14th Amendment?

However, I do believe that our country needs somewhat greater adherence to the Constitution. I am not a big fan of guns, but I think that as long as we have a 2nd Amendment, we need to have it be something meaningful. The same goes for the 9th btw.....
11.6.2008 9:50pm
David Schwartz (mail):
There's a simple fix to the hypo that I adopted from Esteban. Group X can drink at age 21. Group Y cannot drink at all. Constitutional equal protection principles require that, if Group X is permitted to drink at age 21, then Group Y must also be permitted to drink at age 21. Proposition Z says that, despite the equal protection guarantees at issue, Group Y is no longer permitted to drink at all, but Group X still can. This substantially alters the meaning of equal protection, thus rendering Proposition Z a "revision" and not an "amendment."
This is as silly as "Jack is a bachelor, therefore if X, Jack is a bachelor". Where X is "Jack gets married".

What does it mean to say for the group "people under 18" that they can drink if they're over 21. They're not. You might as well argue prop 8 changes nothing, because gay people can still get married once they're straight.
11.6.2008 10:26pm
JTW (mail):
Mr. Schwartz,

You seem awfully hostile, given that we seem to be on the same side of this issue. Moreover, you seem determined to misunderstand me.

The rule for drinking is that you have to be 21. The rule for being married is that you have to be of a certain age and lack a certain level of consanguinity with your proposed spouse. (And before In re Marriage Cases, you had to either be heterosexual or willing to compromise your core homosexual orientation in order to become legally married.)

So, the argument goes, if heterosexuals get to drink/marry once they meet all the basic rules, yet homosexuals do not--despite also meeting all of the basic rules for drinking/marrying--then core constitutional equal protection principles are violated. This is the simple logic of In re Marriage Cases.

Before November 5, therefore, under In re Marriage Cases, both heterosexuals and homosexuals could drink/marry as they personally saw fit, provided they each met the baseline requirements for doing so. But Prop. 8 purports to withdraw the right of one group (homosexuals) to drink/marry while simultaneously preserving the right of another group (heterosexuals) to continue doing so.

In light of this, Prop. 8 yields two problematic results.

1. It raises core constitutional equal protection concerns by withdrawing rights from one group while continuing to give the same rights to another group. It would be an entirely different story if Prop. 8 purported to withdraw the right to marry from everyone, regardless of sexual orientation.

2. If permitted to stand, it would provide precedent for permitting bare majorities (50+1) to strip groups of rights. In regard to Prop. 8, this is made even more problematic by the fact that the characteristic upon which the groups are drawn--sexual orientation--is a suspect classification afforded the highest levels of judicial protection.

Because harmonizing Prop. 8 with the core constitutional equal protection principles of the CA Constitution would require effectively revising those principles, Prop. 8 constitutes a "revision" and not an "amendment" of the CA Constitution.

So whether we're talking about the right to drink or the right to marry, the point is that we don't have a constitutional tradition of placing burdens on minorities that the majority is not willing to place on itself. If everyone must wait until they are 21 to drink, or if everyone must wait until they are 18 to marry an unrelated person, that's one thing. But handicapping only homosexuals (or blacks, Germans, Mormons, women, the poor, Republicans, etc.) with regard to the exercise of either of those rights is inherently suspect under core constitutional equal protection principles.

How much more clear could it be?
11.6.2008 11:19pm
JTW (mail):
And further, under point #2 above, Prop. 8 is problematic because the right at stake is a fundamental right.
11.6.2008 11:23pm
CourageMan (mail) (www):
This is the very situation that we have here--just plug in "marriage" for "drinking age," and you will inevitably arrive at the conclusion that I did in my earlier post.

Except that what you should plug in for "marriage" is not "drinking age" but "drinking" (as in "right to marry"/"right to drink").

And at that point it's clear ... lowering the drinking age from 21 to 18 does take away a right (to drink) from a defined class of persons (those aged 18-20).
11.7.2008 12:46am
CourageMan (mail) (www):
Prop. 8 is problematic because the right at stake is a fundamental right.

But that right is not taken away ... the only *fundamental* right (assuming that adjective means anything other than "I really want it NOW, DAMMIT!!!) is the right to marry, not the right to marry whoever one wants, which no society in human history (including the current one) does, can, has, or will acknowledge.
11.7.2008 12:49am
CourageMan (mail) (www):
If this really were a "revision" rather than an "amendment," shouldn't the California Supreme Court or some lower court have declared it that at the outset and refused to permit it on the ballot? I have in my head that this was tried, but the justices refused.

Is my memory right? And if so, wouldn't that prove bad faith on the part of any state high court member who accepted the argument now.
11.7.2008 1:07am
esteban J (mail):
JTW:

I don't believe i misunderstood your initial point. In the very first sentence, you said that the key difference between P8 and OK/AR was that the latter didn't involve taking away a right from a group that already possessed it. This is what raises the "novel" legal questions.

Perhaps i wasn't crystal clear, but my 18/21 analogy was meant to apply to someone who turns 18 when the drinking law is 18 years, and then when they are 20 they law is changed to 21, thereby stripping them (for the next year) of a right that they previously had, while not stripping the right from someone who was 23 at the time. IMO, that clearly could be accomplished by an amendment, as there is nothing in the cali-constitution that says taking away a right requires a revision.

Second, and more importantly in my view, I noticed that you declined to comment on the definition of a "revision" that i posted, a definition promulgated by the CSC in 2003, and which reflects the historical view on what a "revision" is. It is clear from that definition that a "revision" is something that will "substantially alter the basic governmental framework of the constitution". Likewise, in 1978, the CSC described a "revision" as:

"substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions" (Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208)."

Again, there is no way to square this definition, which clearly refers to pervasive, far-reaching structural changes in the constitution, with a ban on gay marriage.

Also, you seem to be conflating a "gay marriage ban" with the totality of the concept of "equal protection" itself. Using lofty adjectives, such as describing "equal protection" as a "profound" or "fundamental" strikes me as a very, arguably desperate, attempt to miracle-up a gay marriage ban to that very lofty level of profound frame-work change required of a revision. After all, it isn't the equal protection clause in-toto that is being overturned, but just one of many possible manifestations - gay marriage. It is far more accurate to say that Prop 8 places a very narrowly-tailored, minor limit on "equal protection", than to claim it undermines or does away with it in its entirety. Again, this fits with the concept of an amendment, not a revision.

Compare Prop 8 to Prop 115, a 1990 initiative that the CSC DID strike down as being a "revision". This Act would have modified the california constitution to comply exactly with the US constitution (i.e., the cali constitution could not EXCEED the protections of the US constitution) in a broad array of fundamental areas, including:

due process
equal protection
unreasonable searches and seizures
right to counsel in criminal cases
cruel and unusual punishment
double jeopardy
the right not to testify against oneself
and privacy

whew! Now THAT'S what's meant by a "revision". Heck, ANY of those concepts listed above is by itself, probably more profound and far-reaching than gay marriage, and that's what it took for the CSC to say "no, this requires a revision". For it to say that banning gay marriage requires a revision would make a mockery of the term.
11.7.2008 1:29am
CourageMan (mail) (www):
my 18/21 analogy was meant to apply to someone who turns 18 when the drinking law is 18 years, and then when they are 20 they law is changed to 21, thereby stripping them (for the next year) of a right that they previously had, while not stripping the right from someone who was 23 at the time.

Not terrible relevant, but that actually DID happen to me. I was 19 when the state where I was going to college raised the drinking age from 18 to 21, when the feds forced all the states to raise their ages in the mid-80s.


you seem to be conflating a "gay marriage ban" with the totality of the concept of "equal protection" itself. ... After all, it isn't the equal protection clause in-toto that is being overturned, but just one of many possible manifestations - gay marriage.

Bingo. "Action we think the equal-protection clause requires" becomes "the equal-protection clause itself," despite the manifest fact that no court prior to that one ever thought that. The court would have to make the breathtakingly "presentist" claim that California had a different constitutional structure prior to this April. After all, since all this amendment does is reverse a single decision, and if reversing it constitutes a major revision, then establishing it also had to be a major structural revision. That doesn't even pass the laugh test.

If the California Supreme Court accepts the argument that Prop 8 is a revision, it's (redundantly) betraying themselves to be a results-oriented presentist gang of tyrant oligarchs. Nothing more.
11.7.2008 1:48am
einhverfr (mail) (www):

If the California Supreme Court accepts the argument that Prop 8 is a revision, it's (redundantly) betraying themselves to be a results-oriented presentist gang of tyrant oligarchs. Nothing more.


I would agree. Furthermore I would suggest that they will not do this as they are supposed to find a legal interpretation if possible rather than overturning.

IMO, this will mean ruling that Prop 8 does not affect civil unions, gay marriages already enacted, and gay marriages performed in other states, but that it is otherwise on the books and legal on at least this basis. In essence the court is supposed to prefer watering down the amendment rather than declaring it unconstitutional if this is an option.

IANAL, etc.
11.7.2008 2:10am
David Schwartz (mail):
But that right is not taken away ... the only *fundamental* right (assuming that adjective means anything other than "I really want it NOW, DAMMIT!!!) is the right to marry, not the right to marry whoever one wants, which no society in human history (including the current one) does, can, has, or will acknowledge.
So would a ban on criticizing the President implicate any fundamental right?
11.7.2008 10:17am
Wicked (mail):
Nah, It won't be found to be a revision. But the idea of them holding the marriages as domestic partnerships is not too far fetched. The thing is, ground is still being gained at the separate but equal stage, so states moving ahead faster than the normal progression in that regard are going to come up against a battery ram. It is inevitable that eventually every state will be on board the the separate but equal policy - and from there, we will see another Plessy-like overturn and bans on gay marriage will be declared unconstitutional. How many years into the future will this occur? That will depend on how much society has actually evolved.
11.7.2008 10:44am
JTW (mail):
Esteban,

I needn't rebut every point you made in order to win an argument. Or did you miss that day in 1L appellate brief-writing class?

So allow me to list seriatim some of the provisions of the California Constitution that would be altered if Prop. 8 is permitted to stand as an "amendment." I do not presume this list to be exhaustive.

1. Equal protection (CA Const. Art. I, sec. 7(a))
2. Due process (CA Const. Art. I, sec. 7(a))
3. Privacy (CA Const. Art. I, sec. 1)
4. Autonomy (In re Marriage Cases via CA Const. Art. I, secs. 1, 7(a))
5. Expressive association (CA Const. Art. I, sec. 2)
6. Privileges &immunities (CA Const. Art. I, sec. 7(b))
7. Liberty (CA Const. Art. I, sec. 1)
8. Strict judicial review of discrimination against a suspect class (In re Marriage Cases via CA Const. Art. VI)

But even so, this isn't about counting heads--it's about the qualitiative effect of the measure at issue.

I harp on equal protection because it is the constitutional principle most obviously impacted by Prop. 8. But as you can see, it does not stand alone. "Whew!" indeed.

Also, you seem to be conflating a "gay marriage ban" with the totality of the concept of "equal protection" itself. Using lofty adjectives, such as describing "equal protection" as a "profound" or "fundamental" strikes me as a very, arguably desperate, attempt to miracle-up a gay marriage ban to that very lofty level of profound frame-work change required of a revision. After all, it isn't the equal protection clause in-toto that is being overturned, but just one of many possible manifestations - gay marriage. It is far more accurate to say that Prop 8 places a very narrowly-tailored, minor limit on "equal protection", than to claim it undermines or does away with it in its entirety. Again, this fits with the concept of an amendment, not a revision.

You are attacking a straw man here. No one has argued that equal protection is "being overturned" "in-toto," so it's intellectually dishonest of you to suggest it. The profound nature of the change is deceptively simple. If permitted to stand, Prop. 8 would alter the meaning of the equal protection clause to permit a bare majority (50+1) to withdraw fundamental rights from suspect classes.

Fundamental right: marry
Suspect class: homosexuals

Fundamental right: vote
Suspect class: blacks

Fundamental right: speech
Suspect class: women

Fundamental right: religious exercise
Suspect class: Mormons

The list goes on.

Your willful blindness to this point betrays your underlying bias against the cause of same-sex marriage. That's your right, but dude, just be honest and cop to it.
11.7.2008 11:08am
einhverfr (mail) (www):
I suppose on second thought, the argument that a bare majority restricting due process against a group marked suspect by the courts seems to be a very deep change.....
11.7.2008 11:53am
esteban J (mail):
JTW:

Proposition 115 obviously and directly changed the laundry list of constitutional provisions that i listed. In contrast, your claims about what provisions Proposition 8 would change are all by tenuous inference. Using your standard of "alter", it's probably the case that the majority of amendments that have ever been passed actually should be called "revisions", because most probably send out tendrils that could be construed to weave their way through other parts of the constitution. Your logic appears to blur the distinction between amendment and revision beyond recognition.

Second, while i'd agree that it would be intellectually dishonest of me to accuse you of arguing that EP is being overturned in toto, given the nature of your other posts, it was indeed fair, intellectually and every other way, to *suggest* that you seemed to be conflating gay marriage with the concept of EP itself, as a way of prompting you to clarify that (which you did). After all, you have claimed that allowing P8 to stand would profoundly change EP. That does seem to raise the issue of how much of EP you think would be left standing, if any amount at all, should P8 be upheld.

Now as to that clarification: You say that P8 would "alter the meaning of EP to permit a bare majority (50+1) to withdraw fundamental rights from suspect classes."

Here,, i can't see a basis for the first part of the claim. First, What you seemingly-disparagingly call a "bare 50+1 majority" is in fact the "process for amending the state constitution", a process which itself was enacted after with much deliberation by the people of the state and their representatives, and which was indeed designed as a vehicle to permit profound changes to the constitution. Second, there is nothing in the C-Constitution that says that the EP clause (section 7 of the rights sec. of the constitution) is changeable only by revision, not amendment. One might think that if this was what was intended, it would say so in the document. The same is true of your claims about the rights of "suspect classes" somehow being more-priviledged (requiring revision, not amendemnt) as compared to the rights of non-suspect classes.

Finally, in your list, the gay marriage item differs from those other ones in a very important way: amendments to the C-constitution denying black voting rights, women speech rights, and mormon religion rights would all be struck down by the California courts, but not on the amendment/revision distinction, but on the grounds that each violates the Federal constitution, and no state constitutional provisions can ever violate the federal constitution.

In contrast, gay marriage has never been held by the federal courts to have federal constitutional protection.

Your willful blindness to all this betrays your underlying advocacy of gay marriage to the point of being willing to disregard the people's right to amend the constitution.

That's your right dude, but please just be honest and cop to it.
11.7.2008 11:58am
JTW (mail):
Esteban,

Your logic, reduced to a caricature of itself.

1. The CA Constitution clearly means nothing, because it's always read by reference to the U.S. Constitution and has never been read to extend either more fundamental rights or greater protections to insular minorities than the U.S. Constitution does.

2. In re Marriage Cases clearly means nothing, because the CA Supremes clearly didn't hold that the right to marry the person of one's own choosing regardless of gender is fundamental under the CA Constitution.

3. In re Marriage Cases clearly means nothing, because the CA Supremes clearly didn't hold that sexual orientation is a suspect class deserving of heightened judicial scrutiny.

4. Prop. 8 clearly wouldn't place the question of fundamental rights (marriage) of a suspect class (homosexuals) beyond the scope of judicial review (strict scrutiny via CA Const. Art. VI), thus fundamentally changing the structure of the CA constitution, from both a substantive (equal protection) and a procedural (judicial review) standpoint.

5. Claiming that I am "willing to disregard the people's right to amend the constitution" clearly isn't a straw man constructed to falsely characterize my view as "the people cannot speak on this issue ever," instead of "the people cannot speak on this issue in this fashion."

OMG you're so smart! How could I have been so blind?
11.7.2008 12:13pm
cbyler (mail):
If this really were a "revision" rather than an "amendment," shouldn't the California Supreme Court or some lower court have declared it that at the outset and refused to permit it on the ballot? I have in my head that this was tried, but the justices refused.

Is my memory right? And if so, wouldn't that prove bad faith on the part of any state high court member who accepted the argument now.

Your memory is partly right, but your argument is faulty: the CSC refused to decide the amendment/revision issue before the election, on the specific ground that the proposition might fail at the polls and render a decision unnecessary.

There's a technical term for this kind of judicial constructive laziness but I forget it.

In any case, that rationale no longer applies. In fact, it's *opposing* a decision now that would be in bad faith, since it was the proposition advocates who (successfully) convinced the court not to rule in advance.

(You could, of course, still argue in good faith that the Equal Protection Except For Them Clause is a mere amendment, not a revision, of the Equal Protection (For Everyone) Clause.)
11.7.2008 12:38pm
Myr:
To all you prop 8 supporters.

This is a superficial issue just as interracial marriage had been. Back in the day if the court's decision had ended up on the ballot interracial marriage would have been banned.

When you give someone something, you do not heartlessly strip it away.

2% does not make for a vast majority.

A man under bigoted law may "have a choice set" as a woman would as well, however man and woman are just social superficial constructs. A man may be born a man on the outside but inside may be androgynous in personality and mannerisms. The argument of superficial gender is bias because it reinforces gender roles that in reality do not exist outside of superficiality.

I was born a girl, have the appearance of a girl, however personality wise I'm both. SO you're going to try to tell ME just because I am forced to have this appearance I cannot marry the person I love (or be a mechanic, or any other long list of my personal likes because they're not the "social norm")
11.7.2008 12:52pm
esteban (mail):
JTW:

If caricatures 1-3 are your way of admitting you have no good arguments to refute mine on those points, it would have been better to just admit it forthrightly.

It makes little sense to argue that upholding prop 8 would set a dangerous precedent about the protection of fundamental rights of suspect groups if all of your examples of what could be at risk fail the practical test of not complying with the US constitution.

As to 4, while Prop 8 clearly does put a fundamental right (marriage) of a suspect group (gays) beyond judicial review, everything after "thus" fails, since it doesn't meet the definition of a "revision" that i posted previously, and that you continue to dodge.

As to 5, well i did say "amendment", not that you were saying the people could never speak.
11.7.2008 1:03pm
Greg Bingham (mail):
To clarify, the legal action now pending before the California Supreme Court (CSC) turns largely upon previous legal classifications made in In Re Marriage Cases regarding homosexuals as a minority group.


The CSC found the previous ban to fall under the Equal Protection Clause (EPC) of the California Constitution, depriving a "suspect" class of a "fundamental" right. Thus, in debating the potential outcome of the instant case before the court, it is quite irrelevant to argue what you or I deem to be a fundamental right or whether it falls under the EPC, for the CSC has already resolved this issue for purposes of this particular minority group.


In regards to whether Proposition 8 is an amendment or a revision to the California Constitution, the petitioners make two arguments: 1) It is a revision because it seeks to alter fundamental rights guaranteed to minorities under the Equal Protection Clause, and 2) it disrupts the system of checks and balances mandated by the Constitution by undermining the court's authority to enforce fundamental equal protection rights.


Because the CSC has already determined that the right for homosexuals to marry is a fundamental right, Pop. 8 would require a court to deny equal protection claims by same-sex couples seeking to exercise the freedom to marry in the future, even though the court's independent judgment would be that the state equal protection clause requires that the right to marry be available on equal terms.


Regardless of whether the people may by initiative limit for all persons the substantive scope of a particular fundamental right, any attempt, such as with Proposition 8, to impose such a limitation only on a disfavored group strips California's judicial branch of its traditional authority to interpret and enforce the state's equal protection guarantees on behalf of unpopular minorities. This would substantially alter the constitutional scheme in California. See Livermore at 117-19 (defining a revision as making substantive changes to the constitution's "underlying principles" as distinct from purely structural alterations). Furthermore, under California constitutional tradition, when the courts determine that a right is fundamental or that a legislative classification has been drawn upon suspect lines, the ordinary presumptions of legislative competence and deference to the legislative function do not apply. In those situations, the judiciary must play a more active role in ensuring that an individual or group denied a fundamental right is insulated from the potential oppression of majoritarian sentiment. See Bixby at 839-47. Thus, Proposition 8 would not merely restrict the court' traditional role, it would entirely strip the court of the authority to enforce the guarantee of equal protection under the very circumstances where judicial authority is ordinarily at its height. Such a serious revision of the state Constitution cannot be enacted through the initiative process. See Amador Valley at 233 (explaining revision as "far reaching changes in the nature of our basic governmental plan").
11.7.2008 2:32pm
esteban J (mail):
Greg Bingham:

I agree that since the CSC found the statutory ban on gay marriage to violate the EPC, and that it defined gays as a "suspect class" and marriage as a "fundamental right". If i ever said otherwise, i apologize, though i don't think i did.

My point has been that given how the concept of a "revision" has been traditionally defined, and specifically defined by past CSC decisions, such as those handed down in 1978 and 2003, there is no plausible way that an amendment that strips a suspect class of a fundamental right can be struck down. It simply does not rise to the level required by that definition - a substantial, pervasive change in the basic governing framework or plan of the constitution.

You note that Prop 8 would require a court to deny EP claims by same-sex couples seeking marriage, even though the court's independent judgement is that the state EPC requires them to be married. True, but there's no reason to believe that doing this requires a constitutional revision.

For example, in the 1970s the CSC struck down the state's death penalty, on the grounds that it violated the cruel-unusual punishment rights of convicted criminals. Surely, the right to be free from cruel/unusual punishment is "fundamental", and jailed criminals are a "suspect group" in the sense of being a minority that the majority traditionally has had a negative attitude towards, thus invoking that high judicial purpose of protecting a disfavored minority from the wrath of the majority.

Indeed, in its 1972 decision, the CSC said:

"The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority."

Nevertheless, the voters of california used the amendment, not revision, process to overturn that decision.

That amendment has stood, even though it clearly contravened the CSC's independent judgement that the death penalty violated the fundamental right (to not be subject to C/A punishment) of a vulnerable minority.

Indeed, the amendment actually goes beyond just the very-weighty fundamental right of avoiding C/A punishment. It says:

"The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution."

See that last line? How much more far-reaching into the underlying and fundamental principles of the constitution can you get? It says that even if the CSC were to determine that the DP violates other constitutional provisions such as Equal Protection or Due Process, nevertheless the DP remains valid and the independent judgement of the CSC is null and void.

Since the DP was reinstated by the amendment, not revision, process, it seems clear that a gay marriage ban is of a similar nature.
11.8.2008 9:11am
Greg Bingham:
In People v. Frierson, the voters were permitted to define the substantive scope of an important right under the state Constitution -- the right to be free from cruel and unusual punishment -- through the initiative process. However, Frierson dealt with a different question than the one presented in the gay marriage case. To the extent the initiative amendment at issue in Frierson limited an important constitutional right, it did so for all Californian's alike. In the gay marriage case, the issue is not whether the voters can amend the Constitution to alter the fundamental right to marry for all Californians (for example, to take away a particular marital right or to change the name of the institution for all couples). Rather, the issue is whether voters can eliminate the fundamental right to marry only for a particular group, based on a classification the CSC has held to be suspect under the California Constitution's equal protection guarantee. The answer to that question is "no," just as it surely would have been "no" if the issue in Frierson had been whether the voters could amend the Constitution to re-impose the death penalty only for persons of a certain sex, race, religion, national origin, ethnicity, or sexual orientation.

The distinction between Frierson and the same-sex marriage case is crucial. There is a profound difference between a decision by the electorate, for example, to limit the right of the free exercise of religion for all and a decision to limit it only for Muslims or Catholics. Similarly, if the citizens of California -- subject to limitations imposed by the federal Constitution -- wished to eliminate certain rights of all defendants in criminal trials by amending the state Constitution to that effect, the elimination of those rights might be sufficiently discrete as to represent an "amendment" within the initiative power. C.f. In re Lance W. (1985) (initiative limiting criminal defendants' rights to suppress evidence under the state constitution was an amendment rather than a revision). However, a proposed initiative saying that only African-American persons, or only women, no longer have those certain rights would be a far more profound alteration of the "underlying principles" of our constitutional system because it would strike at the heart of the foundational guarantee of equal protection for all California's people. See Livermore 117-19. However wise or unwise a particular decision to add or remove a right may be, that decision at least would apply equally to all citizens of the state and would thus leave intact the guarantees of the equal protection clause. By contrast, a decision to deny a right only to certain disfavored citizens not only presents a whole different issue, analytically, but raises, in the starkest fashion, the danger of majority oppression.

Furthermore, in regard to the quote from Frierson purporting to stand for the court's holding, the facial text of the contested initiative is mistakenly conflated with the CSC's underlying reasoning in upholding the amendment. Central to the court's decision that the initiative constituted an amendment and not a revision was that the CSC "retain[ed] broad powers of judicial review of death sentences to assure that each sentence has been properly and legally imposed and to safeguard against arbitrary or disproportionate treatment." Frierson at 187 (emphasis added). As I discussed previously, Proposition 8 would entirely strip the CSC of its judicial review over the disproportionate treatment of a vulnerable minority.

In Livermore the CSC pointedly juxtaposed the "underlying principles" of the Constitution that are meant to be of a "permanent and abiding nature" with a mere "amendment" which "implies . . . an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." (Livermore at 118-19) (emphasis added). Nothing about Proposition 8 can fairly be said to be an addition or change "within the lines" of our existing Constitution or consistent with the purpose for which the inalienable guarantees of equal protection in Article I were framed. Rather, by deliberately striping gays and lesbians of a fundamental right, Proposition 8 cuts directly at the very notion of equal personhood, and the corresponding entitlement to be treated "as an equal, fully participating . . . member of society," that constitute the most bedrock foundation of the California Constitution. See Ramirez at 267.
11.8.2008 10:58am
esteban J (mail):
IMO, you are making a distinction without a difference.

There can be little doubt that people jailed for serious crimes do constitute a "suspect class", or else that designation has no substantive meaning. All people who are on death row are (a) a minority, and (b) despised by, and especially prone to be treated badly by the majority. Heck, they are in jail so are especially vulnerable to the wanton exercise of state power.

Also, IMO the claim that "the DP proposition applies to all californians but prop 8 only to a particular group, gays" fails because they both have the same nature: In THEORY, each applies to ALL californians (i.e., the DP is not cruel/unusual for ANYONE in cali, just as NO ONE in cali may marry someone of the same sex). But in practice, they actually impact only a minority (people who happen to be on death row, and people who happen to be gay). No difference there.

Second, concerning the underlying reasoning in Frierson about the court being able to review death sentence to make sure it is "being properly and legally imposed" doesn't change the fact that the people had amended the constitution to alter the definition of what "properly, legally, imposed" means, since by the independent judgment of the CSC in their 1972 decision, no death penalty can ever be proper or legal, all are repugnant to the constitutional provision against C/A punishment. Furthermore, the people, via the amendment, enjoined the court from finding that the DP violates any other foundational principle of the constitution as well. And all of that passed muster with the court.

The DP amendment deliberately stripped a vulnerable minority, people convicted of serious, 'capital' crimes, of a fundamental right. It declared that they could be subject to the ULTIMATE bad thing the state can do to someone, take their life, something the court in its independent judgement had found to violate a core, foundational right, that to be free of C/A punishment.

Which strikes me as the same thing that the people have done to gays re marriage with P8.
11.8.2008 4:13pm
Greg Bingham:
Esteban:

The infirmity of your first argument is in your proposition that criminals, and specifically those convicted of a capital offense, are a suspect class. Regardless of your personal views on the matter, they have not been declared legally so by the California Supreme Court. To date, race, gender, religion, and sexual orientation are considered suspect classes, which invoke strict equal protection scrutiny by the court. A finding that jails are made up "predominantly" of racial minorities is not enough to declare all California prisoners (or even those convicted of a capital offense) a suspect class. All Californians are subject to the punishments endorsed by the initiative, and enforced by the state. Returning to an example given previously, if voters were to declare that only African Americans were subject to capital punishment, the court would not be precluded from striking down the amendment on equal protection or cruel and unusual punishment grounds, regardless of the will of the majority.

Your second argument presumes that homosexuals' right to marry someone of the same sex was not declared to be a "fundamental" right in In Re Marriage Cases. The fundamental right recognized is the right to marry someone of the same, i.e., not opposite, sex. Again, this has been decided by the CSC, rending your personal beliefs irrelevant. But the argument fails on a more basic level. Assume that, via the initiative process, citizens pass an amendment to the California Constitution, requiring that all Californians worship Jesus and not Allah. Based on the logic of your argument, this would be valid on the basis that everyone is free to worship Jesus. Because the equal protection clause of the California Constitution ensures that minority rights are protected, it necessarily requires a revision to the California Constitution to remove the judicial enforcement of those rights.

Your third argument, regarding Frierson, again presupposes that those convicted of a capital crime are a suspect class, which they are not. All members of California, regardless of their race, sexual orientation, or religious creed are subject to the punishment the initiative imposed. Thus, the instant case is inapposite.

I will end with, what I think, is a powerful indication of the court's position on this issue: "Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage . . . because that statute—having been adopted through the initiative process—represents the expression of the "people's will," this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people's will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. As the United States Supreme Court explained in Board of Education v. Barnette (1943) 319 U.S. 624, 638: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." In Re Marriage Cases, at 450.
11.8.2008 6:12pm
esteban J (mail):
Greg:

In its 1972 decision striking down the death penalty, the CSC said:

"The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority."

Clearly, when the court talked about "protecting individual and minority rights" from the majority, it was referring to criminals on death row. And i fail to see how the court's attitude towards criminals reflected here differs from the attitude it has towards groups formally designated as "suspect classes". As i've explained, criminals on death row surely have all the substantive traits that would trigger a heightened sensitivity to majority action: they are a minority, they are despised, and they are vulnerable. Arguably moreso than any of the formally designated groups.

You can dismiss this as merely "my irrelevant opinion" if you want, but i don't think that addresses the substantive issue, and surely the court wouldn't want to deprive rights based on formalistic distinctions if they are not defensible.

Second, i fail to see where my argument depends on the court not having found same-sex marriage to be a fundamental right. It did do so. If i did make an argument that implied that, then i was wrong.

However, as i explained, the distinction you made between the reinstatement of the death penalty applying to everyone while the prop 8 ban on SSM applies only to a group, gays, still fails. Both theoretically apply to everyone (no one can marry the same sex, the D/P is not cruel/unusual for anyone), though in practice they impact a minority - those convicted of capital crimes and gays, respectively. As long as i never try to marry a man, i never run afoul of prop 8, and as long as i never commit a capital crime, i never run afoul of the constitutional provision that allows the death penalty.

Also, my logic would not permit forcing people to worship jesus, because (though up to now unstated, because the issue hasn't arisen in the discussion), my logic includes the immutable fact that no provisions of the state constitution can violate the federal constitution, and religious worship is protected by the federal constitution. Likewise, if the SCOTUS were to rule that SSM is protected by the federal constitution, then prop 8 would be null and void. But such is not the case with SSM.

You also note that if the people were to enact an amendment that made only african-americans subject to the DP, it could strike that down on EP or other grounds. I agree. But i think that speaks against your argument here. Because what would be struck down is the notion that blacks, but not whites and other racial groups, could be subject to the DP. The DP itself, as long as everyone is subject to it, blacks/whites, christians/atheists, men/women, gay/straight, etc. would still stand.

Likewise, imagine if the voters said via an amendment that only black people could not have same-sex marriages. Again, i agree that this type of proposition would be struck down. Because what would be struck down is the notion that blacks, but not other racial groups, are barred from SSM. The ban on SSM could still stand, as long as it applies to everyone - black/white, male/female, gay/straight, christian/atheist, etc.

IMO, all this is still beside the point, because i've seen no reason to believe that fundamental rights of suspect groups CANNOT be eliminated by amendment. The definition of "revision" mitigates against such a belief, since that definition refers to changes in the basic, far-reaching structure-of-government, not rights.

Finally, as to your quote, i think it supports my position as well. The court said that the 2000 initiative could not stand because it fails to account for the fact that the provisions of the california constitution itself constitute the ultimate expression of the people's will. It's precisely for that reason that an amendemt was proposed and enacted, because an amendment becomes a part of the constitution, thus overcoming the objection of the court to the 2000 proposition - that because it was not a part of the constitution it did not reflect the highest expression of the people's will. It now does.

Also, the last statement about fundamental rights not being subject to being submitted to a vote or depending on the outcome of any elections is null here for two reasons. First, in the 1970s, a right the court itself described as being fundamental - the right to be free from a particular kind of cruel/unusual punishment, death - was indeed stripped from Californians by a majority vote of the people. Second, even the revision process itself involves submitting a proposal to the legislature for a vote, and then to the people for a vote. And since everyone seems to concede that a revision can change ANYTHING in the constitution, so long as it doesn't violate the federal constitution, it is indeed the case that EVERY fundamental right can depend on the outcomes of votes, elections, etc.
11.9.2008 12:18am
Greg Bingham:
Esteban:

I believe your theory/effect principle of equal protection is misleading. We seem to agree that in effect, banning same sex marriage discriminates against only one suspect class, homosexuals. But the "theory" examples you provide miss what I highlighted in the religion initiative hypothetical. Homosexuals have the "fundamental right" to marry someone of the same sex, just as all followers of religion have the fundamental right to choose which God they pray to. These are fundamental rights of the respective classes. Putting aside federal constitutional issues for a moment, an initiative which required faith in Jesus does not constitutionally hinge on whether or not "everyone is subject to it," for quite clearly everyone would be. Rather, such an amendment would be seen as depriving a protected minority of their fundamental right to choose their God under the equal protection clause, regardless of the fact that amendment doesn't blatantly state "Muslims cannot do X." Whether or not it is explicit, Proposition 8 is intended to eliminate the rights of one suspect class, homosexuals.

Furthermore, the CSC has already heard and dismissed this argument, adopting a more realistic test. "In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person's sexual orientation. Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation." In Re Marriage Cases at 840.

It is a gross overstatement to declare that "[s]ince the DP was reinstated by the amendment, not revision, process, it seems clear that a gay marriage ban is of a similar nature." The decision that the contested initiative in Frierson was an amendment and not a revision depended on three factors: 1) The CSC "retain[ed] broad powers of judicial review of death sentences," 2) the CSC "possess[ed] unrestricted authority to measure and appraise the constitutionality of the death penalty under the federal Constitution," 3) A "very substantial majority" of Californians agreed that capital punishment was appropriate. Frierson at 187. None of these applies to the instant case. The CSC would have no authority to review the "fundamental" right of homosexuals if that right has been stripped from them by the voters. Furthermore, because there is no federal recognition of SSM, the CSC could not protect the right under federal Constitutional law or principle. Finally, there is no overwhelming majority in this case supporting the initiative. It should be noted that the court in Frierson never directly mentions minority rights. However, the court is satisfied that sufficient judicial checks remain to protect convicts from "disproportionate treatment." In contrast, Proposition 8 divests the judiciary of any review over homosexuals' right to marry. Judicial review and equal protection enforcement are fundamental to California's Constitution. Removing these important checks for a minority group works dramatic changes to the "underlying principles" of the Constitution, and requires a revision.

The quote from the CSC included in my last post goes to the mindset of the current justices on the court who will ultimately decide this case. Their disdain for majoritarian curtailment of what they consider foundational Constitutional principles is palpable. Thus, in tipping the scale in favor of an amendment or a revision, this attitude may very well be relevant. There is no case law directly on point. Frierson is distinguishable for reasons I have made clear. The CSC has actively sought to protect this minority from what it deems the "vicissitudes of political controversy." Suggesting that they will uphold a bare majority "election" as an amendment, simply because it was enacted in a different manner than the previous statute seems tenuous at best. Furthermore, unlike Frierson, issues of judicial review are key. Underlying the In Re Marriages opinion is the proposition that it takes more than a simple majority to change foundational rights of minorities, and the judicial process which protects them. Stripping a right and all judicial review from the Court over such matters is not likely to be found to be a mere amendment, IMO.
11.9.2008 1:48pm
einhverfr (mail) (www):
Esteban wrote citing the CSC:

"The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority."


The idea was then that restricting marriage to heterosexual couples would have to fail under that test.

The problem though, as I have pointed out is that "cruel" and "unusual" are both social constructs which are collectively subjective. By 1789 standards, the electric chair would have been unusual at the least. These elements, being subjective social constructions demand different treatment than the principle that all should be protected equally under the law. I think this is differentiable to the point where the court could rule that the Frierson precedent is not directly applicable to this case, or at least that it doesn't mandate the same finding here.

Now, if the amendment at issue in Frierson had said that convicted criminals were not subject to the protections from cruel and unusual punishment that would be a deeper change. Instead it was just a clarification as to what the social constructions meant.

I remain undecided as to whether Prop 8 is an amendment or a revision. However, I don't think Frierson precedent is directly applicable.
11.9.2008 6:20pm
esteban J (mail):
Greg:

First, IMO your religion example isn't any different from the other examples you gave. Just as in theory, 'everyone' is deprived of the right to be free from the DP (just as 'everyone' would have to pray to jesus), in practice, the DP amendment would seemingly have to be seen as targeted at a vulnerable minority, capital-crime inmates. And I think the quote from the 1972 case makes that clear. If a court were to reject my view and draw the distinction you make, then IMO they would be being intellectually dishonest in an effort to achieve a result (legal SSM) that they are hell-bent on achieving.

As for the 3 bases on which Fierson was upheld which you say don't hold in this case. First, regardless of the court's claim about retaining broad powers of judicial review, the bottom line was that the DP, something the court had previously declared to be IN ALL CASES repugnant to a fundamental right, was now going to be reinstated, and people were going to start getting electrocuted, or hung, again. The second point is null, because the CSC always retains the power to review all provisions of the cali-constitution, whether passed by revision or amendment, for compliance with the federal constitution. If it is prima-facie obvious that the SSM ban doesn't violate the federal constitution, then that should be regarded as a point in its favor. Put another way, Prop 8 doesn't strip the CSC of any review of SSM, its clarity and obvious lack of conflict with the federal constitution means that there isn't anything for the court to review, unless it so happened that, say, in one part of the state, a registrar started allowing whites to engage in SSM, but not blacks, jews but not atheists, in which case there's nothing in Prop 8 that would prevent the court from reviewing that practice. Third, it would strike me as silly for the CSC to invoke the "very substantial majority" argument, for the reason that it doesn't apply it to itself. The court declared SSM to be a fundamental right and overturned the will of the people by the barest possible margin, a 4-3 vote. The will of the huge majority of californians (the 2000 prop passed by a 62-38 margin) AND 3 of tne 7 justices on the CSC was overturned by just 4 people.

One could argue that this is a smaller margin than the 5% margin the amendment passed by. And in any event, the court struck down the 2000 proposition, despite the fact that it was passed by a whopping 62-38 margin.

In any event, the amendment provision of the constitution doesn't say anything about needing a super-majority. Amendments passed by huge margins aren't any more or less valid than those passed by a smaller margin.

Hey, perhaps the CSC should adopt an internal rule that initiatives passed by the Whole People of the state cannot be struck down except by a CSC super-majority, like 6-1 or 5-2? That might be a useful amendment for the voters to consider ...

Also, i have not been trying to prognosticate the mindset of this court and what it actually will do. It would not surprise me to learn that the 4 justices who voted to overturn the 2000 prop will use every once of their legal acumen and brainpower to concoct some reason, no matter how flimsy, for overturning prop 8 as well. Their egos, maybe even their sense of their judicial legacy, and their personal political ideologies may be deeply invested in legalizing SSM. I have been arguing what the court should do, in light of the constitution itself and prior precedent dealing with other issues.

Finally, concerning your second post with the quote i provided from the 1972 case: IMO, concepts like "equal protection" and "due process" are no more "social constructs" than is "cruel/unusual". Sure, in 1789 when hanging horse thieves was common, the founders might be astonished to find out that 21st century courts would consider it to violate C/U. But likewise, the enactors of the EPC back in the 1920s would be just as astonished to find a modern court arguing that this clause protects gay marriage, something that surely didn't fall within their view of what it means to be treated 'equally under the law". The concept has changed, at least in the minds of 4 justices on the court.
11.9.2008 9:05pm
Greg Bingham:
Esteban:

You are placing too much reliance on Frierson and Anderson. You continue to argue that criminals are a suspect class, and make repeated calls for why they should be deemed so. However, they have never been legally defined as such by the California Supreme Court. You believe that because the court said in 1972 that the cruel and unusual punishment clause in general is meant to protect minorities, that somehow all criminals on death row are automatically labeled a suspect class and are subject to the strict scrutiny analysis which follows. That is inaccurate. As you know, a suspect class has a very specific definition, which is not met by criminals. You continue, "surely the court wouldn't want to deprive rights based on formalistic distinctions if they are not defensible." This may very well be true, but unless you want to relitigate a due process death penalty case to include criminals in the legal classification, or contest the "formalistic definition" the court has adopted more generally, Frierson is not directly on point or nearly as persuasive as you wish it to be. To state it bluntly, neither Frierson or Anderson ever declared criminals to be a suspect class triggering strict scrutiny, and that is key in distinguishing them.

In contrast, the gay marriage cases indisputably involve a suspect class being denied a fundamental right by a simple majority vote. This is a novel legal issue. I will not belabor the intricacies further, for you and I have done so already at length. I only suggest that you reconsider how persuasive Frierson really is in this context, bearing in mind the proper legal definition of a "suspect class."

A suspect class is one where "the defining characteristic must (1) be based upon an 'immutable trait', (2) 'bear[] no relation to [a person's] ability to perform or contribute to society'; and (3) be associated with a 'stigma of inferiority and second class citizenship,' manifested by the group's history of legal and social disabilities." (In re Marriage Cases)
11.9.2008 10:38pm
Michael Ejercito (mail) (www):
Greg,

Frierson and Anderson were about two fundamental rights- the right to life and the right to be free from cruel and unusual punishment.

The California Supreme Court had ruled that the death penalty violated the state constitution's protection from cruel and unusual punishment.

An initiative amendment was used to reduce the scope of this protection as to allow for the death penalty.
11.10.2008 12:06am
Greg Bingham:
Michael,

You are exactly right. However, I will emphasize what I posted earlier:

To the extent the initiative amendment at issue in Frierson limited an important constitutional right, it did so for all Californian's alike. In the gay marriage case, the issue is not whether the voters can amend the Constitution to alter the fundamental right to marry for all Californians (for example, to take away a particular marital right or to change the name of the institution for all couples). Rather, the issue is whether voters can eliminate the fundamental right to marry only for a particular group, based on a classification the CSC has held to be suspect under the California Constitution's equal protection guarantee.

Moreover, he CSC has made it clear that it does not buy the argument that like the initiative in question in Frierson, defining marriage as between a man and woman applies to all Californians equally: "the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation."
11.10.2008 7:55am