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Analysis of Prop 8 Decision

May 26th, 2009 No comments

Here’s a good background to today’s decision on Prop 8 (Strauss v. Horton)  if you need to get up to speed before reading my layperson’s analysis of the court’s holding today.

First, the results: The court, by a 6-1 vote, has ruled that this ballot initiative was a valid exercise of the process to amend the state’s constitution. On the other hand, a unanimous court briskly disposed of the contention that Prop 8 should be read retroactively to strip those 18,000 or so already-married couples of their status.

The plaintiffs had argued that Prop 8 represented an unconstitutional revision of the constitution; unlike amendments, revisions require the legislature to first approve the measure — by a 2/3 vote — before the voters get to decide the question. So, what is the difference between an amendment and a revision?And what is the proper allocation (“separation,” in the argot) of powers between the branches of government? These were the principal points of contention on the substance of Prop 8.

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change; (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislature (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction. Each point will be discussed under a separate heading.

Ease of Amending the California Constitution

The court began by situating the reader within the unusually amendable California Constitution. Comparing it to other Constitutions — especially with regard to marriage equality and the difficulty of withdrawing that right — the court characterized the petitioners’ claim thus: “[I]t is just too easy to amend the California Constitution through the initiative process.” (Pdf version of the case at page 12.) But it’s not our job to curtail the process, but “to uphold it,” said the court. In a sense, of course, this is an unfair characterization of the plea, which held that the process was not, in fact, as easy as the Prop 8 proponents were stating. Yet the court’s statement does capture some of the frustration many feel at the entire ballot initiative process in California.

Deemphasizing the Constitutional Importance of the “Marriage” Designation

The next point is worth careful parsing (get ready for the torrent of law review articles surely to follow). Was it the right to marry that was fundamental and worthy of protection in the court’s decision last year? We did call it that then, the court conceded, but that’s just a shorthand; now, it’s not the constitutional right to marry but “the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice.)” (p. 35) I guess that opposite-sex couples can still use the shorthand, though. (Some advice:  Same-sex couples, carry the preceding description of your constitutional rights with you at all times, along with your Organ Donor Card and, if applicable, your medical alert bracelet.)

By now deemphasizing the word “marriage”, the court is warring with its own decision in last year’s In Re Marriage Cases, in which the majority relentlessly hammered home the point that the word “marriage” is vital. The court couldn’t ignore that it was doing so, but note this important change from last year’s decision: “We by no means diminish or minimize the significance that the official designation of ‘marriage’ holds for both the proponents and opponents of Proposition 8.” (p. 7; emphasis added) Last year, the court was concerned about those deprived of marriage; now, they are equally solicitous of the views of those opposing equality.

It must be noted, though, that the court in several places reiterated that distinctions based on sexual orientation will continue to be “suspect,” meaning that the highest level of justification will be needed to support them. This principle was one of the signal achievements of In Re Marriage Cases, as it made California the first state to grant the highest level of scrutiny to gays and lesbians. Thus, any statute that discriminates on this basis will likely fall; the constitutional issue is different, though, because Prop 8 carves out an exception to this principle for one issue. (More on this later.)

Amendment or Revision?

This is the heavy sledding, a long discourse on the history of California’s Constitution and on the elusive distinction between “amendments” and “revisions.” I’ll keep this as brief as accuracy will allow. Revisions are substantial changes to the constitution, while amendments are less so. (How’s that for clarity?) Whether a proposed change is one or the other is for the court to decide, not the drafters of the provision. A 1978 case, Amador Valley Joint Union High School District v State Board of Equalization, 22 Cal.3d 208 explained that a change will be considered a revision if it’s quantitatively extensive (like one proposed alteration, struck down by the court in 1948, that was less-than-lovingly referred to as the “ham and eggs” initiative for its muliplicity of subjects, sections, and articles) or qualitatively dramatic. As the court said in Amador, “even a relatively simple enactment may accomplish such far reaching changes in the nature our basic governmental plan as to amount to a revision….”  (p. 223)

Now we’re at the heart of the petitioners’ case: Prop 8 was a revision because it allows, at least in principle, the wholesale deprivation of fundamental rights — and allows this to happen to a class of people that the court itself has held are most in need of protection. Even though “just” one right is at stake here, if the court allows its ability to safeguard the minority’s rights to be overborne so easily, then there’s no limit to it. The voters could remove all legal protections from gays and lesbians — or for any other group, for that matter — as long as they did it in a piecemeal fashion. Strangely, the court declines to address this argument head-on. Instead, it does two things.

First, it exhaustively trudges through a host of cases testing the amendment/revision line, finding that almost any change has been upheld as an appropriate amendment (with the significant exception of a case that tried to deprive the court of the power to interpret its own state constitution in matters of criminal procedure, purporting to require the court to go no further than the U.S. Constitution requires).  But as even Ken Starr conceded at oral argument while defending Prop 8, none of these cases involves depriving a suspect class of fundamental rights. So what about that?

This brings us to the second point. The court simply sidestepped the broader concern about the potential for a step-by-step deprivation of rights:

“Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection…., there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public and private discrimination in all areas without legal recourse…would constitute a constitutional revision….” (P. 93, italcs in original)

But doesn’t Prop 8 itself create this possibility of a broader exclusion? I don’t see how it doesn’t. At least Justice Werdegar, in her concurrence, stated that a broader legal exclusion would amount to a revision, and took the majority to task for leaving open the opposite possibility. But her concurrence is itself unprincipled, because she offers no metric by which to measure whether a given act of constitutional discrimination would be “impermissible.”

Separation of Powers and Inalienable Rights

These two arguments got the quick brush-off. There’s no separation of powers argument, the court concluded, because we retain the right to interpret the state’s constitution; including, they noted (without apparent irony) the “new” one with Prop 8! This isn’t like the criminal procedure case we’ve discussed, because that was an attempt to strip the court of power to do what we do. But that power itself has constitutional limitations, and we remain able to enforce equal protection for gays and lesbians in every other area (at least until the electorate tells us not to).

The inalienable rights argument was intriguing; the AG had argued that the most fundamental guarantees of the state’s constitution transcend that document; the promise of “liberty” so eloquently defended by the U.S. Supreme Court in Lawrence v. Texas is at the very core of these rights. And these can’t be restricted without a compelling reason, not given here. (As you’ve likely guessed, this argument wasn’t dependent on the distinction between amendment and revision.)  The court found that this argument disregarded a line of cases that involved deprivations of liberty, and relied on “old school” notions of natural law to elevate “liberty” a higher order. The court had little patience for this effort.

Retroactivity Issue 

On the procedural issue of whether Prop 8 should apply retroactively to wipe out the 18,000 marriages that had already taken place, the court was clear and dismissive. The language of the amendment made no mention of retroactivity, and that’s required in order to overcome the presumption that laws only apply prospectively. Extrinsic sources (just in case they were relevant) didn’t help this argument, either: Prop 8 proponents stated that the amendment wouldn’t take away any rights, and the explanatory ballot materials were, at best, ambiguous. Not good enough.

———–

Standing firm was Justice Moreno. I will post on his dissent separately. For now, I offer these words of inspiration to close this long post. They’re from the Iowa Supreme Court’s decision in Varnum v. Brien, and were quoted by Justice Moreno in beginning his opinion:

“The absolute equality of all persons before the law [is] the very foundation principle of our government.”

Three Acts on Prop 8: I

March 4th, 2009 No comments

In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).  

News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of ProtectMarriage.com, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”

Reader: Amen to that! “Gay marriage” isn’t even marriage..   

WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?

Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.

WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.

Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.

WordInEdgewise: OK, then consider whether this would be permissible:

News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”

Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”

WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:

News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”

Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”

WordInEdgewise: “I guess it depends on whose ox is being gored.”