The California Supreme Court's Delicate Position with Respect to the Challenge to the Anti-Same-Sex Marriage Proposition 8, and the Hurdle for the Challengers: Part Three in a Series of Columns on the Pending Case

This is the third 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 and Part II of the series for more background. - Ed.

As Alan Brownstein and I wrote in the last column in this series, the California Supreme Court finds itself in a delicate institutional position as it takes up the validity of California's voter-passed ban on gay marriage, Proposition 8. One side argues that Proposition 8 is a valid "amendment" to the state constitution that permissibly overturned the court's ruling last May recognizing gay marriage. The other side contends that Proposition 8 is, instead, a procedurally-flawed attempt to "revise" the state constitution. In deciding which view is correct, the court will essentially be superintending one of the key processes that were designed to check and balance the power of the court itself. For this reason, the court will have to be somewhat circumspect as it tries to give meaning to the amendment/revision dichotomy in this context. In this column, I will offer a few observations on the court's delicate task.

Two Criteria For Assessing the California Supreme Court's Performance in the Proposition 8 Case

In particular, if the court were to embrace the challenge to Proposition 8 and invalidate the voter-approved measure, the court's opinion, to be accepted, would need to satisfy at least two conditions. First, the opinion would have to avoid appearing too newfangled or adventurous. If it were not actually dictated by past precedent, then the opinion would at least need to demonstrate its firm foundation in past cases, in order to overcome the notion that the court is simply protecting its own work product and trying in a result-oriented way to block the polity from imposing a check upon the court's earlier exercise of judicial review.
And second, the theory of "revision" the opinion adopts would have to be defensible in its own right. That is, putting past precedent to one side, the theory of why Proposition 8 effects the kind of fundamental constitutional change that requires the more onerous revision process needs to be convincing on a clean slate.

How does the plaintiffs' challenge to Proposition 8 look when judged by these two criteria? I'll consider each criterion in turn.

How Closely Linked to Past Precedent Is The Prop. 8 Challenge?

The essential claim of the Prop. 8 challengers is that repealing an important right given to a discrete and disfavored minority group under the Equal Protection provision of the state constitution is inherently such a fundamental change that it must go through the revision process. This theory is not necessarily inconsistent with any result the court has previously reached in its cases addressing the definition of revision. But it is also at least arguable that this theory does not really build on -- and indeed seems to move in directions different from those indicated by -- the past analysis and language of the court.

To see this, it will be helpful to reexamine Raven v. Deukmejian, a 1991 case discussed in Part I of this series and the most recent ruling by the court holding a measure to be a "revision."

In Raven, the court reviewed an initiative that explicitly directed the courts of California to construe a set of state constitutional rights enjoyed by criminal defendants to afford no more protection than the parallel set of rights provided for by the United States Constitution. The set of rights that were involved 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 from the California Supreme Court the power to give independent meaning to a 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 measure] 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 another part of the same initiative measure (a part that it upheld against challenge) as well as some earlier cases in which it had rejected claims that initiative measures were revisions, rather than amendments. In all those instances, the court said, what was at issue were "isolated provisions" that did not constitute "far reaching, fundamental changes in our governmental plan," and that 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 court concluded, the revision label (and the onerous revision process) did not apply.

A few points about Raven are in order. To begin with, and importantly, when the Raven court's Justices (and earlier decisions) talk about "revisions," they almost always do so in terms of alterations that are not just "fundamental," but more specifically alterations that are fundamental changes to the "plan" or "scheme" or "structure" of government. "Plans," "schemes," and "structures," in constitutional law, are often terms of art that generally refer to the division of authority between, and the relationship among, different branches of government. These "structural" provisions are often distinguished from the "rights" provisions of a constitution, which concern the relationship between all institutions of government, on the one hand, and individual citizens, on the other.

The facts of Raven and the cases it discusses seem to be readily explicable by reference to this structure/rights taxonomy. In Raven, the initiative provision in question overtly directed courts as to how to do their interpretive job; it told them to look to another institution (the U.S. Supreme Court) in order to decide cases before them. That's a big change in structural relationships between state and federal courts. By contrast, the other part of the initiative (the one that was upheld) and the other cases that were distinguished in Raven all involved provisions – important criminal procedure provisions, to be sure -- that in terms of their form simply changed the meaning of particular individual rights of the constitution, without reference to exactly how the courts should go about interpreting those rights. Changing the underlying meaning of rights seems much less structural than identifying a different body to interpret the rights, or changing the sources to which that interpretive body must look to perform the interpretation.

Proposition 8 on its face doesn't tell courts to do, or refer to, anything. In that respect, then, it seems less "structural" than rights-related.

None of this is to say, however, that the court has ever held that rights-related changes can never be considered revisions; it has not. Instead, it is only to say that the Prop. 8 challengers' theory – while not necessarily incompatible with anything the court has done –isn't premised very extensively on specific things the court has said (beyond the general idea that revisions are "fundamental").

Does the Prop. 8 Challengers' Theory Make Sense?

Let us suppose for a moment that there were no caselaw on the amendment/revision question – that California Supreme Court precedent were a blank page on this issue. Would it then make sense to say that repeals of the equal protection rights of insular and traditionally disfavored minorities are almost necessarily "fundamental" changes that require a more elaborate process? It might, to some extent. But the matter is certainly not free from doubt.

First, not all repeals of equal protection rights constitute revisions. Indeed, one of the provisions of the initiative in Raven that was upheld involved the repeal of certain equal protection rights that criminal defendants had enjoyed. But the Prop. 8 challengers' theory is that the equal protection rights of disfavored and discrete minorities are special, in that they exist to protect politically powerless persons; if a majority of voters could repeal those rights easily, those rights would have less meaning.

Yet don't criminal defendants' rights also exist because criminal defendants are not a particularly well-liked group that can take care of itself in the political process? Why, other than the fear that the accused persons don't get a fair shake in the political passion of the moment after a crime has been committed, do we build such protections into our constitutions?

It is true that when we repeal a criminal procedure right, we are repealing it for everyone, and every supporter of the repeal in theory would/should take into account the possibility that he might need that right sometime. Moreover, that kind of self-interested reflection might not be true for repeal of a right that benefits racial minorities; if a voter does not belong to a racial minority, then he knows with absolute certainty that he will never be directly hurt by the repeal.

But even assuming that the sexual orientation of individuals is (like race) relatively immutable and knowable to each individual and the outside world, do voters really empathize with accused persons more than with gays?

Put another way, do voters really (1) take into account the possibility that they, their family, their friends, etc. are likely to be adversely affected by repeals of criminal procedures, such that we trust the process by which such repeals come about, and (2) fail to take into account effect of measures that affect gays if they are not themselves gay, such that we should distrust those measures more? Isn't it possible, instead, that voters are more likely to have gay friends, family members, colleagues, etc., so that they are more likely to take into account their interests when voting than to take into account the interests of the criminally accused, a class to whom they might never imagine they or their friends, family members, or colleagues etc. could belong? These are questions that might bear on the persuasiveness of the challengers' theory.

Moreover, the Prop. 8 challengers' theory that the targeting of minority groups amounts to "fundamental" change, but that repealing rights enjoyed by everyone would not be a fundamental change, raises its own anomalies. What if Proposition 8 had said instead that "no one can ever have a claim of discrimination based on the idea of equal protection"? In theory, such a revocation would repeal everyone's equal protection rights, not just those of one or more minority groups. So the hypothetical change wouldn't target a discrete and disfavored minority. But should it be deemed less fundamental a change (and, thus, perhaps, not an invalid revision, but rather a valid amendment) because of its breadth in that regard?

And what of other rights, like the rights to freedom of speech and religion? Would the repeal of a right, say, to wear a knife in public when done for religious purposes necessarily be a fundamental change because it targets only the members of those minority religions who care about possessing knives? And wouldn't the repeal of all free speech rights on all public property (such as outside City Hall) arguably be more fundamental than the repeal of gay marriage, even though the free speech repeal might apply to all of us and not just to an already-identified minority subset of citizens?
And if the response is that these things would be "revisions" as well, then how important is the "discrete and disfavored minority" idea here, and how far down the slippery slope have we gone toward denying the people the ability to amend the constitution directly in a range of settings?

In short, the challengers to Proposition 8 are going to have to sell the court, first, on the notion that the theory behind their challenge derives directly from what the court has said and done in the past (even if the court didn't know that), and then on the idea that the theory is a coherent and attractive way of limiting voter discretion that won't require the drawing of arbitrary lines. Is that doable? We'll see, but it will not be an easy task.

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.