The California Attorney General's Brief in the California Supreme Court Case Challenging Proposition 8: The Questions It Raised, and Why It Surprised Many Observers

This is the fourth in a multi-part series of columns 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, that was approved by state voters in November. Readers may wish to refer to Part I, Part II and Part III of the series for more background. - Ed.

California Attorney General Jerry Brown caught many observers off guard with the brief he recently filed with the California Supreme Court in the case concerning Proposition 8, the initiative and purported constitutional amendment banning the marriage of same-sex couples. The Attorney General's brief was offered in response to Petitioners' arguments that Proposition 8 was invalid.

In this column, we will examine the Attorney General's filing and the large questions it requires all of us to ask about the meaning of state constitutions.

What the Attorney General Argues

The Attorney General's first three arguments in the brief were unsurprising as to their conclusions, and conventional in their substance. First, Brown argued that Proposition 8 could not be invalidated on the grounds that, even though styled as an "amendment" to the state constitution, in fact it was a structural "revision" of the document, which had failed to go through the procedures required for changes in the structure of government. Second, Brown maintained that Proposition 8 does not violate the separation of powers mandated by the California Constitution. Third, Brown insisted that lawful marriages entered into by same-sex couples between June 15 and Nov. 4 remained valid because Proposition 8 should not be applied retroactively to marriages that occurred prior to its adoption. (One of us, Vik Amar, discussed the issue of these interim marriages at some length in prior columns in this series.)

The Attorney General's fourth and final argument was much less anticipated and much more expansive in its implications for state constitutional law. Brown stated that "this litigation, perhaps for the first time, poses a . . . fundamental question: Is the initiative-amendment power wholly unfettered by the California Constitution's protection of the People's fundamental right to life, liberty and privacy?"

Brown explained that Article 1, section 1 of the state constitution declared certain fundamental rights to be inalienable. In its decision in In Re Marriage Cases, the California Supreme Court declared that those inalienable rights included the liberty right of same-sex couples to marry, and the equality right of gays and lesbians, a suspect class, to receive the same rights and status provided by law to heterosexual couples.

Accordingly, Brown argued, those rights may not be validly abridged unless Proposition 8 can be justified under strict scrutiny – a rigorous standard of review requiring the State to demonstrate that the challenged law was necessary to the furtherance of a compelling state interest.

The Court in In Re Marriage Cases found that none of the justifications offered at that time for denying same-sex couples the right to marry satisfied this standard of review. Moreover, and critical to his current argument, Attorney General Brown maintained that the passage of a constitutional amendment by a majority of the voters did not change this analysis or necessarily provide a sufficient justification for abrogating rights: "If the initiative process were to encompass the unlimited power to abrogate fundamental rights," Brown concluded, "article 1, section 1, would be stripped of all meaning."

The Unconventional Nature of Attorney General Brown's Argument, and What His Argument Illustrates About the Nature of State Constitutionalism

Wow! The Attorney General's argument here may not be consistent with California Supreme Court precedent upholding other state constitutional amendments against challenge, but in all fairness, it is pretty clearly not intended to be. The Attorney General's is not an argument within the "box" of state constitutional case law. Rather, it is an invitation to the court to step outside of the box entirely and ask some foundational questions about the purpose and meaning of a state constitution.

Let's accept the Attorney General's invitation for a few minutes (or pages). What is the purpose of a constitution in a democratic society? Generally speaking, two answers are provided. First, a constitution protects the general public from a rogue government that abuses its power by serving its own personal and institutional interests instead of those of the people it was elected to represent and to serve. That is, a constitution addresses the so called "agency" problem that arises whenever people are required for practical reasons to delegate power to an agent who might betray the principals.

Second, a constitution protects minorities from unreasonable and oppressive acts imposed on them through government by the majority – that is, from the potential "tyranny of the majority." Typically, the protection provided to inalienable rights serves one or both of these purposes.

Given the process that exists for changing the California Constitution, does this particular state constitution accomplish either of those goals? It is hard to see how the California constitution, as currently constituted, effectively accomplishes either purpose.

Suppose a rogue branch of the government began to exercise unacceptable power in California and the current text of the constitution did not provide adequate safeguards against such abuse. A substantial "revision" (or structural change) of the Constitution would be necessary to reassert popular sovereignty and rein in the abusive branch. But Article XVIII, sections 1 and 2 of the California Constitution require a two-thirds vote of the legislature before such a revision can be offered to the voters for their approval, and a similar vote of the legislature is required to call for a constitutional convention to revamp the whole document. A constitution that delegates to a supermajority of the legislature the power to control whether the people may revise and reallocate governmental authority would not seem to be an effective tool to prevent over-reaching by the legislature itself.

The second goal of avoiding the tyranny of the majority fares no better, and perhaps even worse. Article II, section 8 of the California Constitution permits 8% of the electorate who voted in the last gubernatorial election to place a constitutional amendment on the ballot. And Article XVIII, section 4 makes it clear that only a bare majority of the voters is needed to amend the constitution. How much protection does a constitution provide to oppressed minorities against the majority, if the rights extended to minorities can be removed by a majority vote through a process that is not really guaranteed to be deliberative?

If we put these two arguments together, it appears that the California Constitution doesn't do much of anything that deserves to be called constitutional.

One Response: The Backstop of the Federal Constitution

There are at least two responses to this contention. First, one may argue that the California constitution doesn't provide much in the way of protection to the people or to minorities, but so what? As long as the people of California are protected by the federal bill of rights, we don't have to worry very much about governmental or majoritarian oppression.

That response places a great deal of faith in federal constitutional law. As an historical matter, however, that faith may not be justified. Historically, the U.S. Supreme Court's Justices have been agonizingly slow to recognize some rights that some state courts had already been protecting for years. The California Supreme Court figured out that anti-miscegenation laws violated the equal protection principle in Perez v. Sharp 19 years before the United States Supreme Court agreed in Loving v. Virginia.

Moreover, there are structural reasons why the United States Supreme Court may be quite reluctant to forcefully protect fundamental rights. If the ease with which the California Constitution may be amended casts doubt as to its utility as a constitution, then the amendment process set out in Article V is problematic for the exact opposite reason – it is so onerous as to be dysfunctional. Because United States Supreme Court decisions are so difficult to override by constitutional amendment, it is hardly surprising that the Court is often prudential and tentative in its rulings.

In addition, federalism concerns and appropriate respect for state autonomy appropriately limit the U.S. Supreme Court's willingness to pronounce nationally- uniform standards for the protection of constitutional rights.

The Federalism Value of Experimentation in Various State Constitutions

In sum, we think it would be a serious mistake to rely on the protection provided by federal constitutional rights as a justification for making state constitutions all but useless in securing liberty and equality to citizens. Instead, we suggest that there is a more dynamic and productive way to conceptualize state constitutional law that would benefit both the states and the federal constitutional system.

It is often said that one of the great advantages of a federalist system is that states can operate as laboratories of democracy – experimenting with common law and statutory frameworks in ways that provide useful information to other states and the federal government as well. We suggest that this value and utility is not limited to the common law and legislation: It applies with equal force to state constitutional law.

Put another way, states can operate as laboratories of constitutional democracy. In doing so, they will not only serve to better inform the courts and polities of other states; they will also provide the federal courts with useful information as to how constitutional doctrine has worked in the smaller scale of state constitutional decision-making before any parallel nationwide constitutional doctrine is considered and adopted.

But for states to function as laboratories of constitutional democracy, their constitutions have to operate as constitutions – and state constitutions that are hostage to legislative support and/or a bare majority vote in their alteration processes simply do not do that. An alteration process that is open to the people without legislative support, but that requires more than a bare majority of the electorate to accomplish – or at least requires a deliberative process to ensure that the majority is more than fleeting, and has considered all angles of a problem -- is necessary for constitutional law to further constitutional purposes.

A Second Response: The Primacy of Popular Sovereignty

A second response to the criticisms of the California Constitution we have described is that the primary purpose of a constitution in a democratic society is to protect popular sovereignty. We don't dispute the popular sovereignty foundation of all American constitutionalism, but we are not sure that it requires the ease of amendment that exists in California.

Majority rule is not the same thing as majority whim. Even if a majority of the people can legitimately alter and abolish their system of government, the people should at least be required to understand and reflect deeply upon the changes they are adopting. And the unique value of constitutional law is that it both protects and constrains the operation of democracy. We do not suggest that there is necessarily one best way to maximize those sometimes-conflicting values. Instead, what we offer here is the idea that there is a lot of room for experimentation between the extraordinary burdens on amendment that exist in the United States Constitution, and the all-too-facile system of amendment that exists in California.

Indeed, one of the great experiments that states can conduct through their constitutional systems might involve this very question: the question of how the amendment process can best maximize the protection of democracy, alongside the fundamental rights that are intrinsic to the American experiment in government.

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.