Analyzing the Two Key Arguments in The California Supreme Court Case Regarding the Anti-Same-Sex-Marriage Proposition Eight: Part One in a Series of Columns

By VIKRAM DAVID AMAR


Friday, Nov. 21, 2008

This week, the California Supreme Court decided to hear a case posing two important questions. The first is whether the voter-adopted state constitutional ban on gay marriage passed in the November election, Proposition 8, was validly enacted. The second is - assuming Proposition 8 was indeed validly enacted -- what is the status of the same-sex marriages that were entered into between the California Supreme Court same-sex marriage ruling last spring and the enactment of Prop. 8? (As readers will recall, the court had previously ruled in May 2008 that the then-existing statutory ban on same-sex marriage violated the state constitution.)

In a series of columns beginning with this one, I will take up these complex questions in detail.

A Brief Recap of Key Events

In its May ruling, the California Supreme Court by a 4-3 vote held under the state's constitution -- in particular, its equal protection clause -- that the right to marriage must be extended to gay and straight couples alike. (The California court's ruling was based on the state constitution only; no claim under, or question involving, the federal Constitution was raised or resolved.)

After the California Justices' May decision, opponents of gay marriage promptly gathered and submitted signatures to qualify an initiative measure (known today as Prop. 8) for the State ballot this fall. The initiative sought to alter the California constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized" in the State.

On November 4, 2008, a slim majority of California voters (about 52%) voted to adopt this change to the state constitution. Soon after the election, various proponents of same-sex marriage rights asked the California Supreme Court to stay (i.e., temporarily stop) the implementation of Prop. 8 (which would leave same-sex couples free to marry for the moment), and to grant review of a petition seeking to declare Prop. 8 null and void.

On Wednesday, November 19, the court voted by a 6-1 majority not to grant the stay -- which means that Prop. 8 does take effect for now. However, it also voted by a (different) 6-1 majority to grant review to hear on the merits the claims that Prop. 8 was not properly enacted and thus should not be recognized as legally valid. In addition, the Justices asked the parties to address the question of how same-sex marriages entered into before Prop. 8 was passed should be treated in the event Prop. 8 is upheld as valid.

Among the parties to these cases are opponents of Prop. 8, who argue both that the measure is invalid and that even if it is valid, it has no effect on existing marriages. Also included as litigants are proponents of Prop. 8, who argue that the initiative measure is valid. Moreover, at least some of the Prop. 8 proponents argue that the existing same-sex marriages are rescinded by the initiative's enactment.

In addition, the California Attorney General is in the litigation; he has signaled he will likely defend the validity of Prop. 8 but at the same time will argue that it should not be read to apply to any existing marriages in any way.

All parties are to file briefs in December 2008 and January 2009, so that the court can hear and decide the matter in the first half of next year.

What, If Anything, The Court's Agreement to Hear the Case Signals

It is hard to infer much about the California Justices' views on the merits of this case from their decision to take the matter up. All sides seemed to agree that providing legal certainty and resolution on the question of the validity and meaning of Prop. 8 was important enough to justify immediately hearing the case in the Supreme Court (rather than waiting for the case to come up through the lower state courts). This was, all sides argued, especially true since the questions posed are largely if not entirely "legal" in nature, such that the case would not benefit much from factual development. So the fact that the Justices agreed with all disputants that the case warrants review doesn't signal much about the Justices' receptivity (or lack thereof) to the various arguments on the merits.

One Justice, Justice Moreno, voted to grant the stay of Proposition 8. Granting the stay would have been a particularly plausible thing for a Justice to do if he was relatively sure that Prop. 8 would or should be invalidated. Thus, many will view Justice Moreno's vote as indicative of at least some interest in the challengers' claim that Prop. 8 was improperly enacted (although I should note here that a person could reasonably vote to grant the stay even if he thought the Proposition should ultimately be upheld - which means that Justice Moreno's views on the merits here are far from certain.)

Another Justice, Justice Kennard, would have declined to hear the challenge to Prop. 8 altogether (although she did signal interest in resolving the question of the status of existing marriages entered into before the Nov. 4 election). Justice Kennard's action seems to be an ominous sign for the challengers to Prop. 8: She was one of the four Justices who voted last May in favor of the gay-marriage-right proponents, and thus it seems unlikely that Prop. 8 could be invalidated unless she were also to become part of the group of Justices invalidating it. And yet her vote Wednesday to deny review at least suggests (but, of course, does not establish) that she doesn't find the challenge to Prop. 8's validity to be worthy of the court's attention.

The Challengers' Theory: Proposition 8 is a "Revision," Rather than an "Amendment," and Therefore Had to Go Through a More Elaborate Process

The basic challenge against Prop. 8 is that it so fundamentally alters the state constitution and the power of courts to do their job that it constitutes a "revision" under state law, which must be accomplished through a process more elaborate than the "amendment" process Prop. 8 in fact went through.

An "amendment" can be placed on the ballot for voter approval if two-thirds of each house of the legislature votes to place it on the ballot or if enough voter signatures are gathered to qualify the measure.

A "revision," by contrast, can be put on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it (or if a legislatively-proposed state constitutional convention decides to place it on the ballot). Thus, revisions must go through a process that starts in and runs through the legislature, whereas amendments can bypass the legislature altogether and rely only on signature-gathering and voter approval.

The key and difficult question, of course, is what differentiates "amendments" from "revisions." The California constitutional text itself offers few clues. However, the California Supreme Court -- in the few rulings in which an initiative measure was struck down because it went through the amendment process when in fact it was a revision -- has given some guidance. The court has said, for instance, that a measure is a revision if it "substantially change[s] our preexisting government framework" or makes "a fundamental change in our preexisting governmental plan." Revisions, the court has also stated, "involve changes in the underlying principles on which the Constitution rests."

A Key California Supreme Court Precedent on the Revision-Versus-Amendment Distinction

The court has, in more than one case, given a standard hypothetical example of such a change: a measure that would "vest all judicial power in the Legislature." Such an alteration in the respective powers of the judicial and legislative branches, says the court, would profoundly change the "scheme" of government so as to be a revision.

In Raven v. Deukmejian, a 1991 case and the most recent ruling by the court holding a measure to be a "revision," the court considered an initiative that directed the courts of California to construe a set of state constitutional rights of criminal defendants to afford no more protection than that provided for by the United States Constitution. The set of rights included the rights to equal protection of the law, to due process of law, to assistance of counsel, to a speedy trial, to confront witnesses, to be free from unreasonable search and seizure, to freedom from compelled self-incrimination, to freedom from double jeopardy, and to freedom from cruel and unusual punishment (among others).

The California justices said that such a provision wrests power from the California Supreme Court to give independent meaning to whole host of state constitutional liberties and provisions. In so doing, the Justices reasoned, the initiative makes the California jurists simply implementers of the interpretive will of the U.S. Supreme Court's Justices, who have the final say in determining the meaning of the federal Constitution.

The court explained the import and magnitude of the change that the measure would bring about: "As a practical matter, ultimate protection of criminal defendants . . . would be left in the care of the United States Supreme Court [and taken away from the state Supreme Court. . . . The measure] in practical effect, vests a critical portion of state judicial power in the United States Supreme Court, [which constitutes] a fundamental change in our preexisting plan of government. (emphasis added)"

In Raven, the court distinguished some earlier cases in which it had rejected claims that initiative measures were revisions, rather than amendments -- including a case involving a measure that directed state courts to construe the state constitutional ban on "cruel and unusual punishments" to be no broader than the federal Eighth Amendment's prohibition. Those earlier cases, the court said, involved "isolated provisions," did not concern "far reaching, fundamental changes in our governmental plan," and did not amount to "a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution." For those reasons, the revision label (and the onerous revision process) did not apply.

Is the California Supreme Court Likely to See Proposition 8 As A "Revision" or An "Amendment"?

What are we to make of the California Supreme Court's explanation of what a "revision" is? And how does the court's explanation apply to the present dispute over Prop. 8?

For starters, the court's suggestion that revisions describe significant changes to the 'structure of government' must be taken with a grain of salt. Notice that the examples the court gives of things that must go through the revision process -- a shift in power from state courts to the state legislature or from the State Supreme Court to the United States Supreme Court -- tend to involve diminutions of judicial power in particular. What if an initiative tried to change the state constitution to alter or reduce legislative, rather than judicial, power? Say, a term-limits measure for elected legislators? Or a measure taking the job of drawing legislative district lines away from the legislators? These changes might be thought to alter the "framework" or "plan" or "scheme" of government in major ways, and yet it is not clear they would be considered revisions.

Nor should such changes be considered revisions: It makes very little sense to require the legislature to approve (or convene a state constitutional convention to approve) measures that are themselves designed to check the legislature. Circumventing legislative inertia or self-dealing was precisely why direct democracy devices like the initiative came into being in the first place, and (legislative) foxes simply ought not to be allowed to guard (reform) henhouses.

So the court's seemingly greater skepticism about measures that rein in judicial power, as opposed to legislative power has some plausibility, although it does of course raise questions about whether judges should be the judge of their own powers -- a basic conundrum attending the institution of judicial review for over two centuries. This conundrum is especially acute when judges, as in Raven and the current dispute, are called upon to assess the validity of a process that is itself supposed to be a check on, and a response to, the court's prior exercise of judicial review. In the federal court system, judges might abstain from resolving such validity disputes under the so-called "political question" doctrine. If the slate were clean, judicial abstention by the California court in cases like Raven and the Prop. 8 dispute -- abstention which would leave the executive branch the most likely candidate to decide the legality of the measure in question -- would seem similarly attractive.

All of this brings us to back to the current lawsuits, and what the court ought to do. On its face, Prop. 8, unlike the measure in Raven, doesn't explicitly limit or shift judicial interpretive power (except in the way that any change in the constitution repudiating an earlier judicial ruling limits judicial power to interpret the way the prior case did). It doesn't speak directly to what judges should do in performing their jobs at all. Instead, Prop. 8 substantively changes the meaning of state equal protection law as applied to the context of gay marriage.

A Topic for the Next Column in this Series: The Argument that Proposition 8 Is In Fact a "Revision," and Whether It is Convincing

How, then, can the challengers to Prop. 8 argue that it should be considered a "revision?" What's their reason for suggesting that repealing the equal protection rights of a traditionally disadvantaged group is necessarily a change in the "framework" of government or an alteration of the fundamental judicial role? What kind of coherence and/or slippery slope problems do their arguments raise? And is the court the right institution to really resolve the dispute?

I'll take these questions up in the next installment.


Vikram David Amar is the Associate Dean for Academic Affairs and a Professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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