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California Prop. 8 Upheld, But Held Not To Affect Existing Same-Sex Marriages:

So reports the San Francisco Chronicle, reporting that the decision is 6-1. (Thanks to How Appealing for the pointer.) I can't access the opinion right now at the California Supreme Court site, presumably because of high traffic, but I hope to comment on it as soon as I read it. UPDATE: Got the opinion now, thanks to Chris Geidner; hope to blog about it soon.

In the meantime, good advice for the pro-same-sex-marriage forces from Chris Geidner (LawDork):

All weekend, Twitter and the blogosphere have been abuzz with the Day of Decision rallies planned across California and the nation. Its organizers, who include Robin Tyler and Andy Thayer, state: “[I]f the court rules against us, make sure that our angry voices are heard around the nation. Anger at denying an entire group of people our civil rights is perfectly legitimate and appropriate.”

This reasoning is incomplete, misguided and horribly short-sighted, and it is my hope that marriage equality leaders like Evan Wolfson, Mary Bonauto and Andrew Sullivan would concur.

First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here....

Third, and most simply, this is not the righteous anger exhibited this past fall. This decision is likely to be a complex one turning one the intricacies of California constitutional law, as well as its common law history and principles of equity. That is not protest-worthy, however, so the decision will have to be simplified to the point of being unrecognizable in order to provide the tinder sought by the organizers to light the fire of protest in their attendees’ spirits....

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From the California Supreme Court's Prop. 8 Decision:

Strikes me as exactly right:

[N]o authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power....

In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

The California Supreme Court justified its earlier decision recognizing same-sex marriages by reference to the California Constitution, which in turns draws its authority from having been enacted by the people. Whether that decision was or wasn't a sound interpretation of the California Constitution, an interpretation of the California Constitution is what it purported to be.

The constitutional provisions that the people enacted the people may likewise lawfully amend. Perhaps the amendment may be morally wrong, but it is legally authoritative (unless it violates some superior legal rule, such as the U.S. Constitution, but recall that the debate in this case has been about rights supposedly secured by the California Constitution).

More on the amendment/revision question, I hope, as I read further.

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The California Supreme Court on Amendment vs. Revision:

Under the California Constitution, the initiative can be used for constitutional "amendments" but not constitutional "revisions"; see this post for more, including the constitutional text that strongly suggests this. Here's the California Supreme Court's explanation for why Prop. 8 is a constitutionally permissible "amendment" and not an impermissible "revision" (all emphases in original):

“[O]ur analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.” ...

From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section to article I -- a section that affects two other sections of article I by creating an exception to the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases. Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions....

[As to the qualitiative prong of the amendment/revision analysis,] the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes “far reaching changes in the nature of our basic governmental plan,” or, stated in slightly different terms, that “substantially alter[s] the basic governmental framework set forth in our Constitution.” ... Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution -- that is, “in [the government's] fundamental structure or the foundational powers of its branches.” ...

Again, strikes me as quite correct.

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The California Supreme Court on Attorney General Jerry Brown's Arguments Against Prop. 8:

I again think the court's reasoning is quite correct (emphasis in original, some paragraph breaks added):

In his briefing before this court, the Attorney General agrees with our conclusions that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, and that the measure does not violate the separation of powers doctrine. The Attorney General, however, advances a novel, alternative theory under which he claims Proposition 8 should be held invalid. Relying largely on the circumstance that article I, section 1 of the California Constitution characterizes certain rights as “inalienable,” the Attorney General maintains that “Proposition 8 should be invalidated even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by article I without a compelling interest.” ...

[But] the “inalienable” nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right. As noted above, from the beginnings of our state constitutional history, the right of the people “to alter or reform” the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which article I, section 1 refers, and California's 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.”

Indeed, the drafters of the 1849 Constitution, in their message submitting the proposed Constitution to the people of California, expressly described the people's right to alter or reform the Constitution as an “inalienable right.” In like manner, when the people's authority to propose and adopt constitutional amendments by initiative was added to the California Constitution in 1911, the constitutional provision spoke of the initiative “not as a right granted the people, but as a power reserved by them.”

Accordingly, there is no basis for suggesting that the inalienable rights set forth in article I, section 1, and the other provisions of the Declaration of Rights, are of a higher order than -- and thus exempt from -- the people's right to “alter or reform” the Constitution through either the legislative or the initiative constitutional amendment process. Indeed, a review of the current version of the constitutional provisions contained within article I's Declaration of Rights demonstrates that modification of such rights through the amendment process has occurred throughout our state's history.

In urging this court to confer upon the “inalienable rights” terminology of article I, section 1 a much more sweeping and far reaching meaning than it traditionally has borne, the Attorney General cites selected excerpts from a number of mid-19th-century opinions that gave voice to the natural-rights jurisprudence that was common in that era. As pointed out in the response filed by interveners, however, the expansive natural-rights jurisprudence of that time long has been discredited and, moreover, even the cited jurists never suggested that courts possess the authority to invalidate an explicit constitutional amendment, adopted through a constitutionally prescribed procedure, on the ground that the amendment is inconsistent with the scope of a right previously embodied in the Constitution. As discussed at length above, on numerous occasions in the past this court's interpretation of the fundamental constitutional protections accorded by the state Constitution to the “life and liberty” of those accused of crime has been modified by constitutional amendments proposed and adopted through the initiative process, and the constitutional validity of those amendments repeatedly has been sustained in our prior decisions. In short, the Attorney General's position finds no support in the governing California authorities.

In defending his argument, the Attorney General emphasizes that he “is duty bound to uphold the whole of the Constitution, not only the People's reservation of the initiative power, but also the People's expression of their will in the Constitution's Declaration of Rights.” When we examine the entirety of the California Constitution, however, we find nothing that exempts article I, section 1 -- or any other section of the Constitution -- from the amendment process set forth in article XVIII.... [W]e would exceed the well-established and time-honored limits of the judicial role were we to take it upon ourselves to fashion such a restriction upon the present and future right of the people to determine the content of the Constitution that governs our state.

[Footnote: As one legal commentator has explained: “To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed.” (Viles, The Case Against Implicit Limits on the Constitutional Amending Process in Responding to Imperfection (Levinson edit.1995) 191, 198; see also Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role (1983) 97 Harv. L.Rev. 433, 442 [“allowing the judiciary to pass on the merits of constitutional amendments would unequivocally subordinate the amendment process to the legal system it is intended to override and would thus gravely threaten the integrity of the entire structure”].)]

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Popular Sovereignty:

On my initial quick read, it seems to me that the California Supreme Court's cases (1) recognizing a right to same-sex marriage under the California Constitution, and (2) today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right are excellent examples for any discussion -- in class or otherwise -- about popular sovereignty.

Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people's views prevail over the Justices'. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people's supposed legal inability to alter supposedly "fundamental" or "inalienable" rights. On the other side, there was able briefing to the contrary, plus Justice Moreno's partial dissent (which I've only skimmed at this point, though I'll read it later today). Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.

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What Next for Same-Sex Marriage in California?

A few observations:

1. This decision is based solely on the California Constitution. Within the federal system, the California Supreme Court's view of the meaning of the California Constitution is final, and the U.S. Supreme Court has no jurisdiction to revisit it. So there can be no federal review of the question whether Prop. 8 violates the California Constitution.

2. Supporters of same-sex marriage rights can of course argue to the U.S. Supreme Court that the U.S. Constitution mandates recognition of same-sex marriage, in all states and under federal law. But it seems unlikely that the Court would accept such an argument at this point, and in any case this case is not a good vehicle for that, since the decision below was all about the California Constitution. (I'm not sure that federal constitutional arguments were even made by the challengers, but in any case they weren't considered by the Court.)

3. Supporters of same-sex marriage rights can also argue that the Full Faith and Credit Clause requires recognition of out-of-state same-sex marriages, both in California and elsewhere. I'm not an expert on the subject, but I my sense is that this argument will fail, at least before the current U.S. Supreme Court and probably also before many state and federal courts (at least ones that aren't willing to find a constitutional right to same-sex marriage in the first place).

4. Finally, supporters of same-sex marriage rights can also try to put on the ballot an amendment that would repeal Prop. 8, and would amend the California Constitution to actually recognize a right to same-sex marriage (or to authorize the normal legislative process to enact legislation recognizing such a right). My sense is that such a proposal will indeed soon pass, perhaps not in the next election cycle but likely within the next 10 to 15 years, if I'm reading social trends correctly.

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Justice Moreno's Partial Dissent:

Justice Moreno argues that Prop. 8 is a revision, not an amendment, and therefore must be implemented through a legislative proposal or a constitutional convention, and not by initiative. His rationale is that "a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority" is a "kind of change in the countermajoritarian nature of the equal protection clause" that "is the type of fundamental alteration that can be done only through a constitutional revision." And his arguments rests heavily on tradition: the courts' "traditional constitutional function of protecting persecuted minorities from the majority will," equal protection being "one of the core values upon which our state Constitution is founded," "the guarantee of equal treatment hat has pervaded the California Constitution since 1849," and the like.

But the trouble is that what constitutes equal rights, equal protection, and equal treatment -- and on the other side, "persecut[ion]" of minorities rather than legitimately different treatment of different kinds of behavior -- is not self-defining. Up until 2008, the California Constitution had not been read as treating the opposite-sex-only marriage rule as unconstitutional. Up until the 1990s, no state constitution in America had been. Certainly the drafters of the California Constitution to whose handiwork Justice Moreno appeals did not believe that opposite-sex-only marriage rules are unconstitutional. They had a different view of what constitutes a denial of equal rights than does Justice Moreno. Likewise, the voters who enacted Prop. 8 have a different view from Justice Moreno, and a view that is more in common with the truly traditional understanding of the substantive scope of equal protection.

Justice Moreno does acknowledge "that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical." But again the judgment of what constitutes "prejudice" and what constitutes a legitimate basis for different treatment is precisely what the voters and the Justices disagree about.

Now in our constitutional tradition, the courts are indeed the final expositors of a constitution in the sense that they can strike state statutes down as unconstitutional. If the legislature disagrees with the courts, or if the voters enacting mere statutes disagree with the courts, then the courts' interpretation of the constitution prevails. (The initiative process in California, and in some other states, lets voters enact proposals as statutes if they so wish, and with lower petition thresholds than those required for constitutional amendments.)

But when the voters who are trying to amend the Constitution take a different view of the proper scope of constitutional principles -- even very important principles such as equality -- and a different view of the line between "persecution" and proper recognition of what they see as real differences, then it seems to me that the view of the sovereign (the people), not of the sovereign's servants (the Justices), should prevail. And though the Constitution prescribes that the will prevails only when it uses certain channels, and the channel of the initiative is usable only for "amendments" rather than "revisions," I see no basis for importing the Justices' personal views of "equality" and "persecution" into the amendment/revision line. (The majority expresses that well, I think.)

Talk of constitutional provisions' being deliberately "countermajoritarian" strikes me as unhelpful here. First, the Constitution itself is both a countermajoritarian document and a majoritarian one; the initiative amendment provision is itself a designedly majoritarian feature. Second, the countermajoritarianism is itself a feature of certain constitutional provisions, which are just as subject to constitutional amendment, it seems to me, as are the majoritarian provisions.

And third, the question in such matters is always which majority should prevail -- the majority of Justices on the state supreme court, or the majority of voters voting on the constitutional amendment. When the majority of the Justices are interpreting the state constitution in order to evaluate statutory provisions, they can appeal not just to their own majority view but to the authority of the Constitution. But when the majority of the Justices disagrees with the views of voters who are trying to amend that very same Constitution, such an appeal no longer works. All the Justices can say is that they are protecting the rights of the minority, but the whole point of the dispute is that there's disagreement about what those rights should be.

That's why I think the majority's view was correct here. The revision/amendment line is indeed part of the state constitution, and it should be enforced. But there's no justification for defining the line by reference to the judges' own views of what equality really means, when the majority of the voters who are trying to amendment the constitution disagrees with majority of the judges.

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What If the Voters Overturn Other Constitutional Rights Decisions?

A common argument against the constitutionality of Prop. 8 was to hypothesize what would happen if voters overturn other constitutional rights decisions, or for that matter repeal expressly secured constitutional rights:

[U]nder the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities. As petitioners point out, “imagine if Perez v. Sharp, 32 Cal.2d 711 (1948), striking down California's ban on interracial marriages, had been decided on state constitutional grounds rather than federal constitutional grounds. And imagine if a bare majority had attempted to overturn that landmark ruling by enshrining the ban into the Constitution.” Other equally unattractive hypotheticals suggest themselves. Under the majority's reasoning, California's voters could permissibly amend the state Constitution to limit Catholics' right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans' right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession ( id., § 8). While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of (art. I, § 24), and in some cases more broadly than (see, e.g., Fashion Valley Mall v. National Labor Relations Board (2007) 42 Cal.4th 850, 857-858), its federal counterpart. The majority's holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes. And if the majority does not avow that such broad constitutional changes could be made by amendment, but only more “limited” ones, then I disagree with such an implicit distinction. As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

And these hypotheticals could likewise be raised not just as to the initiative amendment process, but also the legislative revision process, since one can imagine the same voters' electing enough legislators who would support those voters' preferences. (To be sure, that isn't politically likely, but neither are the other hypotheticals particularly likely; they certainly haven't been enacted in the past, even in times in which they might have been politically more plausible.) So Justice Moreno's argument can't easily be cabined in a way that would apply to the narrow question of what's an amendment and what's a revision -- it would equally cast into doubt (or not cast into doubt) the people's power to amend the constitution through legislative proposal or through a constitutional amendment.

But it seems to me the answer to this is clear: Those amendments would indeed be legally permissible changes to the California Constitution. (One might distinguish limitations on voting rights, on the grounds that they would entrench themselves, by stripping some people of the legal right to repeal those amendments; but wherever such a constitutional principle might or might not reside, that doesn't apply to same-sex marriage, or many other examples.)

They would be immoral. In extreme cases, they might constitute a sufficient moral justification for revolution (a matter I flag simply because the possibility can't be denied, and because of course our own U.S. Constitution is built in large part on a revolution against the existing order, plus likely a slightly later, peaceful and broadly accepted, coup against the existing order). They would violate the U.S. Constitution, and thus would be struck down on those grounds. But under the California Constitution, it seems to me that they should be understood simply as the sovereign changing the Constitution in a way that's very bad but that is consistent with that constitution.

In any event, what makes those provisions wrong is not that they are legally "revisions" rather than "amendments" and thus illegal. What makes them wrong is that they are morally wrong and thus immoral. But ultimately that judgment about what is morally wrong, as I mentioned, is under the California Constitution left to the sovereign people, and not the sovereign's servants in the state supreme court.

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