An Analysis of the California Court Ruling Upholding Proposition 8
	By VIKRAM DAVID AMAR
	Monday, June 1, 2009

In this column, I will look closely at the decision handed down last week by the California Supreme Court upholding Proposition 8 -- the voter-enacted state constitutional amendment approved last November that prohibits California from validating or recognizing same-sex marriage. Proposition 8 was itself at least in part a response to a ruling issued by the California high Court in May 2008 holding that the California constitution, as it then existed, prohibited the state from extending the marriage label to opposite-sex couples but denying it to same-sex unions. I'll begin by discussing two aspects of last week's ruling that are potentially puzzling, but on closer examination, understandable, and then cover an aspect of the recent ruling that is a bit more inscrutable.

Why the Court Reached Two Different Conclusions Regarding Same-Sex Marriage in 2008 and 2009

Many observers around the country have been initially perplexed by the big holding in last week's decision: How could the very same court hold that same-sex marriage is protected under the state constitution one year, and then, twelve months later, hold that same-sex marriage is prohibited under the state constitution? The short answer is that the two cases were brought under different state constitutions. The May 2008 ruling was an interpretation of a California state constitution that lacked Proposition 8, whereas last week's ruling was an interpretation of the California state constitution that includes within its provisions Proposition 8.

Indeed, the real question this year was not so much whether same-sex marriage implicates constitutional values of equality and privacy (at issue in 2008), but rather whether the process by which Proposition 8 was added to the constitution was valid. And the court ruled that the process Proposition 8 went through was indeed valid.

Relying on past precedent that substantially constrained its discretion, the court determined that Proposition 8 was an "amendment" to the constitution, rather than a "revision" of the constitution. Accordingly, it concluded, the more arduous procedures required for accomplishing "revisions" did not need to be followed. Instead, like all "amendments," Proposition 8 was properly placed on the statewide ballot by virtue of enough state voter signatures having been collected, even though two-thirds of each house of the state legislature never approved the Proposition, as would be required for "revisions."

While the court did observe that some other states and the federal government have more rigorous (and perhaps more deliberative) processes for making changes to their own constitutions, the court (correctly) said that it was limited in what it could do by the particular rules for constitutional change that California has in place today.

(I, for one, had hoped that the court was going to be a bit more critical of the ease with which California's constitution can be changed -- even on important matters such as individual or minority rights -- in order to prompt a civic discussion about whether California ought to move to emulate some other states in this respect. While the court was certainly constrained in the result it could reach, it certainly could have legitimately expressed its views on the possible need for reform, a question on which its voice would have been very credible and authoritative.)

Why the Court Upheld the Same-Sex Marriages Entered Into in the Interim

There is another aspect of last week's opinion that also puzzled some folks: the court's decision to leave intact the thousands of same-sex marriages that had been entered into (or already recognized) in California between the May 2008 ruling and the passage of Proposition 8 about six months later. Doesn't preserving these marriages, but (by virtue of Proposition 8) banning same-sex couples from getting married today, discriminate against persons simply on account of when they happened to seek a marriage license?

The answer is yes -- people who are not yet married are being treated worse than those who are already married. But not all discrimination is impermissible. Differentiating in favor of people who are already married is constitutionally allowed because these folks have reliance and expectation interests that individuals who are not already married lack. The law often (and legitimately) treats persons with greater reliance and expectancy interests more favorably. For example, in employment law, we sometimes treat persons who have not yet been hired less favorably than persons who are already employed and are threatened with layoffs, because having a job (rather than seeking one) creates certain psychological expectations. (In a related vein, expectancy interests may factor into how the U.S. Supreme Court resolves the pending case in which white firefighters in New Haven, CT, complain about a promotion exam being thrown out after it was taken –after they expected to be considered for promotion based on their test scores -- because the exam had yielded no minority candidates eligible for promotion.)

Here's another example of the way we protect expectation and reliance interests: In California, we treat existing property owners more favorably than new buyers as to property tax valuations -- under the (in)famous Proposition 13 (which was upheld by the U.S. Supreme Court) -- because existing owners have an expectation that their property tax bills won't rise too quickly, whereas new buyers lack that psychological expectation. If we can (and do) protect psychological expectations in these commercial and property spheres, surely protecting them in the relationship (marital) sphere is permissible.

I should note, here, that even couples whose same-sex marriages were left intact have not been spared all psychological damage by last week's ruling. Proposition 8's prohibition of same-sex marriage going forward undeniably diminishes the feelings of governmental respect and equality of all gay and lesbian Californians, even those who were able to marry during the window in 2008.

One Aspect of the Court's Ruling that Was Puzzling

The basic contours of the court's decision last week -- the upholding of Proposition 8, and the preservation of already-existing same-sex marriages -- were quite predictable to those careful analysts who were familiar with the various legal arguments the litigants raised. But another aspect of the ruling was a bit harder to understand. The court, at various points, described the narrowness of Proposition 8; Proposition 8, the court repeatedly observed, removed the label "marriage" from same-sex unions, but it did not repeal all of the important tangible material benefits that registered same-sex partnerships continue to enjoy in California.

The court's highlighting Proposition 8's narrowness and the measure's sole concern with the label of marriage was a bit odd given that its May 2008 ruling, requiring marriage equality for same-sex couples prior to the passage of Proposition 8, spent considerable energy explaining how important labels are to full equality. In other words, there is more than a bit of tension between the May 2008 ruling emphasizing that tangible benefits by themselves aren't enough to create meaningful equality, and this week's ruling minimizing what was at stake in the battle over Proposition 8's validity. To be sure, one could plausibly agree with both the court's May 2008 result and its May 2009 result, but calling Proposition 8 "narrow" does undermine some of the lofty reasoning and rhetoric the court offered a year earlier.

Why, then, did the court characterize Proposition 8 as being narrow? One possibility is that the court wanted to send a message that although it was willing to uphold Proposition 8 as a valid "amendment" rather than a "revision," its decision was based on the narrowness of the Proposition; had Proposition 8 gone beyond withdrawing a label, and tried in addition to take away many material tangible benefits for same-sex couples, then the court might have been less willing to uphold the measure.

But that possibility is in tension with another strong theme of the court's opinion last week --the idea that the repeal of individual or minority group rights simply does not constitute a "revision." The court made pretty clear its view that "revisions" are limited to changes in the relationship between, or structure of, governmental institutions. (That is the ground on which two of the seven Justices parted company with the majority). Thus, even if Proposition 8 had not been "narrow," and had involved tangible benefits as well as the label "marriage," it still would not have involved the "structure" of government, and so it still would have been a permissible "amendment" rather than a "revision." (Repeal of some individual or minority group rights -- such as voting rights, speech rights, or perhaps education rights -- might blur the line between rights' repeal and governmental structure issues, but deprivation of family law benefits would seem unlikely ever to fall on the structural side of the line and thus be counted as a "revision.")

At the end of the day, there is a puzzling tension between the court's (seemingly unnecessary) characterization of Proposition 8 as "narrow" and the court's relatively rigid understanding of "revisions" as being only about the structure of government. It is hard to know, given the court's approach to defining "revision," why it matters whether Proposition 8 was thought of as broad or narrow, and thus why the court felt the need to describe it either way. Perhaps the Justices were simply trying to remind us all that gay couples have come a long way in the last decade, even if they don't yet enjoy the label marriage. While not particularly relevant to the legal analysis in the case, that point may still be a helpful thing to bear in mind.

Where Things Go From Here

Last week's ruling is certainly not the final battle in the struggle for same-sex marriage recognition in California. Already, a federal lawsuit has been filed in San Francisco in which the plaintiffs (represented by former Bush v. Gore adversaries Ted Olson and David Boies) argue that California's ban on same-sex marriage violates the U.S. Constitution's guarantees of equal protection and due process. And some proponents of same-sex marriage in the state are also looking seriously into placing another ballot measure initiative in front of California voters -- to repeal Proposition 8 and protect same-sex marriage -- in the foreseeable future. Each of these tactics raises a host of complicated legal and strategic questions. More on each of these new fronts later.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and 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.