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What Will Happen to California Same-Sex Marriages?

California voters seem to have enacted Prop. 8, a constitutional amendment that states, "Only marriage between a man and a woman is valid or recognized in California." What happens to all the same-sex marriages that have already taken place? (Let's assume for now that the amendment is upheld as constitutional, at least as to future marriages — something that I think is quite likely.) Here's an updated version of my thinking on the subject from earlier this year. (I should note that I voted against Prop. 8.)

1. One option is that they may remain valid, whether because the initiative is construed as not applying to existing marriages, or because the courts conclude such an interpretation is constitutionally mandated by the Contracts Clause ("No state shall ... pass any ... Law impairing the Obligation of Contracts ....").

I highly doubt that this will happen. According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. (Nor is there any language in the initiative summary, or the supporters' arguments, that purports to interpret this text as not applying to existing marriages.) Future marriages, preexisting marriages, in-state marriages, out-of-state marriages — all are valid and recognized only so long as they are between a man and a woman. And the Contracts Clause likely won't affect it, since it's been held not to apply to marriage contracts (see Maynard v. Hill, 125 U.S. 190 (1888); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934)), which is why statutes authorizing divorces have been allowed even as to marriages that had been entered into when divorces were not available.

Note that this article reports that "[a]n attorney for advocates of the ban essentially agreed" that "the proposed amendment, like most laws, will be interpreted to prevent same-sex marriages in the future, and not affect those that were legal when they took place." And some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5. But it seems to m that these sources can only be the most tenuous evidence of what the voters actually understood the amendment as meaning, or intended it to do. As People v. Castro, 38 Cal. 3d 301, 312 (1985), held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294 (1996).

2. Another is that pre-initiative same-sex marriages will become domestic partnerships, which under California statutes give most of the rights of marriage. The proposed initiative doesn't purport to bar such domestic partnerships, and it would make sense to treat such invalidated marriages as domestic partnerships, since this is the result that seems most likely to effectuate as much of the married couples' intentions as possible. In a sense, this would be similar to what courts do when they invalidate legislation on constitutional grounds, including in the same-sex marriage case itself: Since the legislation can't be literally applied, they tend to try to find the solution that the legislature would likely have preferred had it anticipated the court decision.

In the same-sex marriage case, for instance, the court had to implement its equality decision by choosing between treating same-sex marriages as "marriages," and concluding that under state law no marriages could be labeled "marriages." (Recall that even the right-to-marry part of the court's decision left open the possibility that a legislature could simply not use the label "marriage" for any relationship.) The court chose to treat same-sex marriages as marriages, reasoning that "it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation." The actual legislative intent of the legislators plus the voters couldn't be perfectly implemented because of the court's constitutional ruling, but the court tried to implement it as closely as possible. One could argue that courts should do the same as to private same-sex marriage decisions invalidated by a state constitutional amendment.

On the other hand, I suppose there might be some same-sex married couples who might take a "marriage or nothing" view, so as to them changing the marriage to a domestic partnership might not reach the result they prefer; maybe there would even be so many that the judgment about what is "more consistent with the probable [individual] intent" becomes unclear. More importantly, there are specific statutory provisions dictating what it takes to create a domestic partnership. A court might well conclude that, unless these formalities are complied with, the domestic partnership can't be said to exist, even if a different set of formalities required for a marriage — a now-invalidated marriage — have been complied with.

Given this, I'm not sure how likely a court would be to take this approach; I'd love to hear those who know more about California judicial practices in similar scenarios might be (though note that no scenario has been quite like this one). Note also that the backers of the initiative might well make statements in the ballot pamphlet endorsing this solution — since such statements might give the initiative more support without deeply offending its advocates — and those statements might influence the judges deciding how to implement the initiative once it's enacted.

3. A third option is that same-sex marriages will be eliminated altogether, and that married couples will remain domestic partners only if they had entered both into a marriage and into a domestic partnership (on a belt-and-suspenders theory) — though I've never heard of that happening, and it's not clear to me whether existing California marriage and domestic partnership law would allow this. My sense is that it should be interpreted to allow this (since this is hardly the same as marrying one person but then becoming domestic partner with another, which is not allowed), but I'm not positive.

4. Finally, it's possible that the legislature will step in, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people's preferences, and I see no reason why it would be unconstitutional. (Someone suggested that it might violate the Ex Post Facto Clause, but that has been interpreted as applying only to criminal laws.)

UPDATE: Kaimipono Wenger (Concurring Opinions) adds an interesting wrinkle.

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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?
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Not so fast: Is Prop 8 an "amendment" or a "revision"?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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