The Core Issues in the Proposition 8 Case Before the California Supreme Court: Was Proposition 8 a Valid Amendment, or an Invalid Revision, to the California Constitution? And Should the Court - Or Governor Schwarzenegger - Make the Decision?

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN


Friday, Dec. 05, 2008

This is the second in a multi-part series on the California Supreme Court's recent decision to address the validity of Proposition 8, the voter-enacted alteration to the California constitution foreclosing same-sex marriage, approved by state voters in November. Readers may wish to refer to Part I of the series for more background. - Ed.

During the running legal battle over gay marriage in California, Governor Schwarzenegger, when asked of his official stance in the dispute, has said numerous times: "Let the court decide. Let the people decide." Well, the court did decide, last May. And then the people did decide, last month. And now, apparently, the court is going to decide again.

Say what?

Last month's announcement by the California Supreme Court that it will resolve the question whether the voter-approved state constitutional ban on gay marriage -- Proposition 8 -- was validly enacted is surely confusing to many. How can a state constitutional amendment itself be unconstitutional?

The answer, as one of us, Vikram Amar, explained in the first column in this series, lies in the murky distinction between a state constitutional "amendment" and a constitutional "revision." An amendment can be placed on the state ballot simply by gathering the requisite number of signatures (as was done for Proposition 8). A constitutional revision, under the terms of the California constitution, can be placed on the ballot only at the initiation of the state legislature.

Precisely what things can be accomplished by amendment, and what things constitute revisions, will be the subject of much briefing over the coming weeks. Our current sense is that the challengers to Prop. 8 have an uphill climb if we are to be guided by what the California Justices have said and done in the past concerning the amendment/revision dichotomy.

A Preliminary Issue: Who Decides What Is a Revision, and What Is an Amendment?

But we think another, preliminary, issue ought to be raised: Putting aside the question of what a revision is, there is the question of who ought to decide what a revision is. In particular, it seems somewhat aggressive and problematic that a court would claim for itself the power to decide whether its own past ruling (from May) was validly overridden. As intimated in Part I of this series, there is an inherent institutional conflict of interest when a court is being asked to assess whether its own past decisions get to survive in the face of the procedures -for altering the text of the constitution - designed to check and balance the court itself. That is especially true where, in order to embrace the challenge to Prop. 8, the Justices would have to go well beyond the constitutional text of the word "revise" and also well beyond anything the court has itself ever said about the limits on the constitutional amendment process. (To emphasize this point, consider the predicament the other Justices on the court would confront if they were asked to evaluate the constitutionality of the process employed to recall a Justice sitting on the court.)

Indeed, many of us who defended the May ruling against the charge of "judicial activism" did so on the ground that ambitious forward-looking interpretations of the state constitution by the Justices are more defensible when there is a relatively uncumbersome process for fixing judicial "mistakes" by changing the constitutional document itself. But if the court gets to decide how streamlined that popular oversight process really is, then the argument in favor of permitting Justices to expand law creatively in the first place is somewhat weaker.

The federal courts have confronted the same kind of issue, and many of the United States Supreme Court's Justices have acknowledged the virtues of judicial restraint here. After the U.S. Supreme Court ruled that the federal Constitution did not permit Congress to regulate child labor in the early 1900s, a federal constitutional amendment was proposed to overturn that decision. A dispute arose over whether the amendment had been validly ratified by the requisite number of states, and the U.S. Supreme Court in 1939 in Coleman v. Miller declined to resolve the controversy, with four Justices explicitly saying that the Court should not step into the fray over the validity of constitutional alterations. In explaining the rationale employed by these Justices (known as the "political question" doctrine) 40 years later, Justice Lewis Powell observed in Goldwater v. Carter how dicey it is when the Court is asked "to oversee the very constitutional process used to reverse Supreme Court decisions. In such circumstances, it may be entirely appropriate for the Judicial Branch of government to step aside."

Much more recently, consider the roundly-criticized decision by the U.S. Supreme Court to enter the 2000 Presidential election fray in Bush v. Gore. Among the many arguments for why the Court should not have intervened, and instead should have left the matter for Congress to resolve, is the powerful idea that Justices should not be involved in picking the President who, in turn, shapes the Court by picking replacement Justices. Resolving the meaning of contested constitutional words is hard enough; when a branch of government has an institutional conflict of interest, matters are more complicated still.

If the Court is Not the Right Decisionmaker on the Amendment/Revision Issue, Who Is?

If the California court ought to step aside now, who should make sure the line between amendments and revisions is respected by Proposition 8? Probably not the legislature, since it too has an institutional conflict of interest. "Revisions" require involvement by the legislature, whereas amendments can bypass the legislature altogether; the legislature might ordinarily be inclined, to insure its continued relevance and participation, to define the revision category broadly. (We note, by the way, that press reports this week indicate that the California Legislature may take up a formal resolution to register its institutional position on whether Prop. 8 constitutes a revision - but, of course, expressing a view is quite different from having the power to decide the issue.)

That leaves us with the executive branch, the only one of the three whose own past action or institutional bypass is not directly at issue in the Proposition 8 dispute. It is also, by happy coincidence, the only government branch selected by and accountable to the same statewide electorate that got to vote on Proposition 8.

How Would It Work If the Executive, Not the Court, Had the Final Say on the Amendment/Revision Issue?

It may seem counterintuitive in today's world that an institution or person other than a court can render a final decision upon a legal question. But it happens all the time. Unless and until a court is asked to clarify matters or compel the executive branch to perform a particular act, high- level executive officials often decide what law validly exists and should be enforced. So, for example, if there were a dispute about whether Prop. 8 had more votes in favor of it than against it, unless and until a court intervened, the executive branch would decide the legal question of whether it had "passed."

This is also the case in situations where a court is asked to intervene but for prudential reasons stays out. When a government official is impeached and convicted by the legislature and complains that the impeachment process was unfair or improper, courts routinely will decline to resolve that case. Instead, it will be up to the executive branch - in deciding whether to continue to pay the ousted official and allow him entry into his government office, and so on - to decide whether the impeachment/conviction result is entitled to legal respect. It is only because, in the modern era, courts intervene so frequently that we forget that other branches often have important - and sometimes ultimate - interpretive responsibility.

In the present case, there are at least three ways the California court could, if it wanted, take account of the awkward institutional position in which it has been placed in being asked to oversee the process designed to allow the people to overrule its own decisions. First, and easiest, the court could simply "step aside," to use Justice Powell's terms, and leave it to others to decide how to handle things. True abstention means staying out entirely.

Second, the court could offer its "opinion," but explain that given the delicacy of its own role in this matter, it can't award any relief - that is, it can't, in this context, order anybody to do or not do anything in the way it might, in other cases, feel comfortable directing other officials precisely how to follow the law. This "declaratory" approach is similar to what Justice Robert Jackson hinted that the U.S. Supreme Court ought to have done in the (in)famous Korematsu case involving Japanese internees. Even if the Court, because of institutional limitations, couldn't comfortably order the President or the military authorities to stop interning U.S. citizens of Japanese descent, it could have declared its view that such internment ran afoul of the Constitution, leaving it up to the executive branch to decide what, if anything, to do with that declaration.

Finally, the California Justices could simply rule on the merits of the Prop. 8 challenge, but defer greatly to the views of the executive branch. In this case, because the Attorney General may feel institutionally obligated to represent the voters who favored Prop. 8, the court should invite the Governor to file a separate brief laying out his own legal view of whether Prop. 8 is a revision, and then defer to the Governor's position if it is minimally credible. (That's the approach the U.S. Supreme Court recently took when asked to review the U.S. Senate's impeachment procedures; so long as the Senate's procedures were minimally defensible, they were entitled to the Court's deference, even if the Court might have created a different procedure than the Senate if it were deciding the question in the first instance.)

The Constraints of Past Precedent on Revisions Versus Amendments

It is true that the California Supreme Court has -- in past cases like Raven v. Deukmejian (discussed in the last column in this series) -- struck down, on the revision/amendment theory, alterations of the state constitution that had been intended to overrule the court's own past cases. So embrace of the prudential approach we advocate here would involve calling into question some of these past rulings. But virtually any approach that the Justices adopt in the Prop. 8 litigation -- other than summarily rejecting the revision challenge to Proposition 8 altogether -- would involve the court's recharacterizing and backing away from things that were said and done in prior rulings on the meaning of "revision." If we are going to have to revisit past precedent anyway, we might as well do so in the most coherent and defensible way possible, and a way that doesn't seem tailor-made to reach a particular policy outcome.

It is also true that the California Justices, in repudiating San Francisco Mayor Gavin Newsom's attempts to authorize gay marriage by himself in 2004 in In re Marriage Cases, used some broad language (from which at least one Justice dissented) criticizing the ability of executive branch officials to undertake the task of interpreting the constitution. But that case involved, as the court itself mentioned dozens of times, a local executive official, not a Governor. Also, the court there was talking about the respect the executive branch owed to a "duly enacted" statute, whereas the question in the Prop. 8 case is whether the measure was duly enacted in the first place. Finally, and importantly, the Newsom case did not involve a situation where the court itself had an institutional conflict of interest. So even if, as a general matter, courts are better than executive officials at imposing a final resolution upon legal disputes, the present case - like all so-called "political question" situations - is an exception to that general rule.

In the end, as understandable as Governor Schwarzenegger's desire to let others resolve the dispute may be, maybe this time the interpretive buck should stop with him after all.


Vikram David Amar is 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.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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