Douglas W. Kmiec

How the California Supreme Court's Proposition 8 Ruling Can Vindicate Both Equality and Religious Freedom: Part Two in a Two-Part Series of Columns

By DOUGLAS W. KMIEC


Tuesday, March 10, 2009

In Part One in this two-part series of columns on the litigation assessing the validity of Proposition 8 in California, I explained how a constitution places even "the People," exercising initiative power, under the rule of law. Having established the framework of government and the basis for express and implied rights, and having allocated certain interpretive issues about both structure and individual rights to the state's high Court, the people of California are no longer free to change the Constitutional terms of the bargain at will. They purposely ceded that freedom in favor of other important values such as institutional and precedential continuity. A constitution that can be erased each year at the polls is no constitution at all.

In this column, Part Two in the series, I will elaborate on a proposed resolution to the Proposition 8 litigation. Unlike the remedies advocated by either side, this resolution would vindicate both sets of fundamental principles -- of equality and religious liberty -- that are inescapably intertwined with the same-sex marriage question.

The Proposal: The Court Should Leave It To Private Groups, Particularly Religious Traditions, to Bestow the Name "Marriage" And Give All Couples Equal Rights to "Espousal"

In a recent editorial, the Los Angeles Times commented favorably upon a proposal authored by myself and my Pepperdine colleague Shelley Ross Saxer that would establish equality among all couples regardless of sexual orientation, while at the same time respecting the language of Proposition 8 -- which expressly denies the state the authority to acknowledge as a "marriage" any relationship other than that between a man and a woman.The resolution seeks to honor both equality and the interest in religious freedom that was the most noble of the motivations cited for supporting Proposition 8.

This proposal seemed of considerable interest to several members of the Court. The Chief Justice and Justices Chin, Moreno, Kennard, Werdegar and Corrigan all touched upon various aspects of the proposal, with Justice Chin askingseveral of the advocates specifically whether the proposal would satisfy the Constitution as amended by the people by Proposition. Both sides answered unequivocally "Yes," though our Pepperdine colleague Dean Starr questioned whether it was an appropriate role for the Court to fashion the details of our proposed resolution.

Dean Starr is correct that there would bedetails for the Assembly to legislate if the proposal were to be adopted by the Court, but that has often been true following a landmark constitutional ruling. For instance, there was a need for legislative follow-up to the decision in Brown v. Board of Education desegregating the schools. And here in California, for example, legislative changes were needed when the California Supreme Court found in People v. Perez that the state Constitution invalidated the limitations on interracial marriage. The need for legislative follow-up (the nature of which is sketched below) here, too, does not deny the Court's appropriate role and duty to reaffirm its earlier judgment in In re Marriage Cases, as modified by Proposition 8.

The Amendment/Revision Question, the "Singling Out" Issue, and the Parallel to Romer v. Evans

Both sides conceded at the hearing before the Court that it was not the intent of Proposition 8 to set aside either the Court's ruling last May in In Re Marriage Cases, or to in any way to deny or diminish the equal rights and benefits already established under law. Accordingly, the Court's responsibility is straightforward: to determine, under its own precedent, whether Proposition 8 is an "amendment" or "revision." "We the people" gave the power to make that determination to the Court long ago. Moreover, for the Court to exercise its uncontested interpretative authority to draw the line between amendment and revision is no denial of what Justice Kennard and Dean Starr referred to as the "inalienable right" of the People to be their own governors.

The Court's own precedent directly finds substantial structural change to the California constitution to be a revision, necessitating the approval of both the assembly and the people. However, as the Court's questioning elucidated, it is an issue of first impression whether an initiative aimed at denying the fundamental rights of a "suspect class" – that is, one found by the Court to be historically targeted for discrimination -- is, or is not, of the same legal magnitude as a structural revision.

As Vikram Amar and Alan Brownstein have thoughtfully illustrated in their series of columns on the Proposition 8 litigation, such as this recent one, a principal purpose of the state Constitution is to prevent a majority that will not be subject to the burden of the law it enacts from imposing targeted legal disabilities onothers. The Court noted that the U.S. Supreme Court, in Romer v. Evans, found similar singling out to be the product of irrational animus and therefore to violate the federal Constitution's guarantee of equal protection. Dean Starr noted that the parties in the state Supreme Court litigation chose not to raise the federal issue. Yet, since the California Court has a legacy of being more protective of individual liberty than the U.S. Supreme Court, is there any reason to think the Court would now choose to honor that liberty less avidly than the U.S. Supreme Court did in Romer?

Were the Court to determine -- influenced contextually but not precedentially by the minimal standard set out in Romer -- that Proposition 8 is the equivalent of a structural revision, then the Proposition would be invalid. That would mean that the state could continue to do what it did after In re Marriage Cases: apply the term "marriage" to the unions of all couples, both same-sex and opposite-sex. Many would commend that outcome as a matter of justice, but as Chief Justice Ronald George suggested several times, it would be more judicially restrained to leave it to the Assembly and the people of California to decide whether or not to apply a more rigorous requirement for constitutional change.

A higher threshold to alter the state constitution is something definitely worth considering in light of the atypical ease with which the California Constitution can be – and hundreds of times, has been – changed. Moreover, as discussed below, invalidating Proposition 8 would not clearly address the religious freedom concerns that it is reasonable to see as animating at least part of the support for the Proposition – unless, that is, the Assembly codified a clear distinction between, say, state or civil "marriage," and religious or sanctified marriage.

Even If the Court Sustains Proposition 8, It Should Not Over-read the Text; Only the State's Use of the Marital Concept is Precluded by the Proposition

As noted above, the Court can both sustain Proposition 8 and read it solely as a limitation upon the state's usage of the terminology of marriage. Taking this restrained judicial path would allow the Court to both let Proposition 8 stand, and to let the core of the In re Marriage Cases ruling stand. It would also recognize that marriage is in origin a distinctly religious concept, and a status that the state has no authority to confer. That we have grown accustomed to letting the state employ marital language is a product more of inattention to the significantly different roles of state and church than of conscious design.

Some say Proposition 8 was motivated by hatred. And indeed, an aspect of that ugliness was present in its pre-adoption advocacy. The law need give such animosity no quarter. However, the law can legitimately defer to the understandings of the Old and New Testament, the Book of Mormon, the Quran and any other religious dogma or doctrine that assesses the criteria for eligibility for marriage differently. Of course, some may strongly disagree with different faith practices that do, or do not, acknowledge same-sex marriage. However, within the context of a voluntary faith community, or in the reasonable accommodation accorded such communities in their charitable work, educational endeavors, and related pursuits, the ability to teach differently is itself a fundamental civil freedom – the free exercise of religion. This freedom of religious conscience should be affirmed as strongly as the state's commitment to equality under law.

It might be asked, Should not non-believers have the benefit of marriage? In fairness, however, that is a bit like asking, Should not non-believers have the benefit of religion? The Constitution guarantees the freedom to pursue faith – if one so desires; it does not guarantee that the sacraments or practices of faith, including sacramental marriage, be awarded to those who do not subscribe to the religious beliefs with which they are associated. Moreover, the liberal deference historically given by courts to what constitutes religious belief hardly limits the freedom to mainstream churches. And of course, while I have not included it below, as a drafting matter, the Assembly could borrow from the military conscientious objection cases that extend CO status not just to religious believers, but also to individuals who have private beliefs or associations that occupy the place of religion. In any event, accommodating religious practice is well-accepted in precedent as not constituting a disguised form of religious favoritism. Here, it was the desire of the people to limit the state's use of marital terminology, not a covert plan to advance or endorse religion in general or a given religion in particular, that gave rise to the statute.

Understood in this way, Proposition 8 can be construed by the Court to be not an act of hatred, but one of prudence, with its only inconvenience being the need to update the corresponding provisions of the family code. It is well within the Court's traditional function simply to hold that "Proposition 8 having been found to be both a valid amendment to the state Constitution and not in contradiction to the precedent of this Court, the matter is remitted to the legislature to take such measures as will conform the laws of California with this determination."

What might the Assembly do to comply with such a holding? Compliance is far less daunting than has been intimated. It is not appropriate, of course, for the Court to draft statutes, but one option the assembly might choose is included below. The proposed statute avoids the terminology of "civil union" or "domestic partnership"in favor of a new term, "espousal," because the civil union or domestic partner terminology might be misinterpreted as describing an earlier, incompletely equal status. Of course, if the Assembly preferred, it could opt for the more familiar terminology, rather than the newer term "espousal," so long as the definition chosen ensures equality in name and in substance.

Finally, to avoid a situation in which opposite-sex California couples will lose federal benefits, the proposed statute states that no Californian who is presently eligible for federal right or benefit will be denied the same due to the compliance of the state Assembly with the will of the people as expressedin Proposition 8. This disconnect with federal law is problematic, and it should be noted that the federal practice of treating officially-recognized relationships differently on the basis of sexual orientation is under challenge in the federal court. That said, would California's statutory acknowledgment of existing federal law make it constitutionally complicit in the event an equal protection violation is ultimately found? The better view is "no." California has no control over federal law or the allocation of federal benefits. It would be unusual to seek a constitutional remedy from the state, rather than from the source of the discrimination, the federal government.

A Proposed Statute Conforming the California Family Code to Proposition 8

"Title I
Definitions

Section 1: To espouse
v. voluntarily to embrace or to accept another person as one's life partner

Section 2: Espousal
n. the act of two persons being united before each other and one's community by civil authority

Section 3: Marriage
n. the act of two persons being united before each other, one's community, and one's God by religious authority

Title II
Eligibility

Section 1: Those eligible for Espousal
The state of California by its Constitution as amended by the people provides that a license for espousal may be granted to two people age 18 or older who are not presently espoused under the laws of this state or enjoying a comparable status under the laws of any other jurisdiction at the time the license is sought, subject only to the limits of consanguity. It is the intent of the Assembly that any person espoused to another regardless of gender be treated equally for all lawful purposes within the competence of this state.
It is further the intent of the Assembly that, to the extent that federal rights and benefits accrue only to those who are of different gender and married, that such persons, if lawfully espoused by the state of California, shall enjoy all such federal rights and benefits.

Section 2: Those eligible for marriage determined solely by voluntary religious belief or practice
On and after the date of this enactment, the state of California by its Constitution as amended by the people has no competence to issue a license of marriage. No religion, religious society, or religious association of any type in this state in association with any religious or nonreligious activity it performs or sponsors shall be required directly through law or regulation or indirectly through subsidy or denial of benefit to perform or not perform or acknowledge or not acknowledge a marriage ceremony contrary to its own religious belief or practice."


Douglas Kmiec, a Findlaw guest columnist, is Chair and Professor of Constitutional Law, Pepperdine University. The former head of the Office of Legal Counsel for President Reagan, Professor Kmiec was a campaign surrogate for Barack Obama and authored Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook Press/Penguin 2008).

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