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California's Proposition 8: A Battle for Definitions PDF
by Helen Alvaré, J.D., Senior Fellow in Law   
alvare_h.jpgIt is well-known by now that Californians voted November 4 to ban “same-sex marriage” in their home state.  By a vote of 52% to 48%, voters passed a ballot initiative successfully titled by its “enemies” as an initiative to “Eliminate the Right of Same Sex Couples to Marry.” The verb “eliminate” was used to refer to the fact that an earlier decision of the California Supreme Court (In re Marriage Cases, 43 Cal. 4th 757, (2008)) had discovered in the California Constitution’s equal protection clause a “right of marriage” for same-sex couples, albeit acknowledging that “marriage” in California up to that time had always connoted the union of one man and one woman. The initiative itself read precisely as follows: “Only marriage between a man and a woman is valid or recognized in California.” The language was written as an amendment to the state’s Constitution. Formerly, the very same language was included in California’s Family Code (e.g. California’s statutes) section 308.5; that statute was the very one overturned by the state’s highest court in the Marriage Cases decision. This time, California voters wanted to enshrine the language preserving natural marriage  in a place they believed the same court could not reach --  the state’s constitution, which is itself supreme to the courts. 

But were they wrong? Could the California Supreme Court find a way to impose same-sex marriage on Californians again, even as against the language of the Constitution? We won’t know the answer until next spring, when that court hands down the next decision in this long-running saga. This time, the court will be deciding what appears to be a narrow legal question, but it is the very question on which the fate of Proposition 8 hangs. In what follows, and in order to assist you to “follow the action” in California, I will describe the controversy presently before the Court regarding Proposition 8

A few days after its passage Proposition 8 was challenged by same-sex “marriage” proponents, on the grounds that it was a “revision” to the state’s Constitution, and not an “amendment.”  This is important because the ballot initiative process cannot be used to “revise” the state’s constitution. According to Sections 1 and 2 of Article XVIII of the California Constitution, revisions can only be made by a process which requires approval of two-thirds of both houses of the state legislature. Amendments, on the other hand, according to Section 3 of Article XVIII are allowed to be made by ballot initiative.

Of course then, the million dollar question is what marks the difference between a revision and an amendment?  Needless to say, supporters and opponents of same-sex marriage -- whose petitions and amicus curiae letters in opposition to such petitions have already been filed with the court -- differ on this point.  Both sides reach back into California judicial decisions for the relevant definitional language. They note that constitutional “revisions” alter “underlying principles” of the government and make “far-reaching changes to the nature of our basic governmental plan.”   Amendments, on the other hand, make additions or changes within the lines of the original constitution, which, even if they result in “various substantial changes in the operation of the former system, “ add “nothing novel to the existing governmental framework of the state.”

Immediately, you can see that these definitions are not self-evident, let alone self-executing.  Both sides, therefore, go further to make arguments based on prior cases in which ballot initiatives were upheld or overturned based upon their judicially-determined status as an amendment or a revision.  These are not simple arguments, but their rough outlines can be sketched.

Supporters of Proposition 8 begin by emphasizing the “precious right” of the people to make laws via initiatives, noting in particular that with Proposition 8, the people are merely reinstating the law that prevailed in California since the inception of the state. They also note the brevity of Proposition 8’s language. It is fourteen words and touches one subject; marriage. They contrast this with an earlier ballot initiative determined to be a “revision” which had thousands of words and would have repealed or substantially altered 15 or 25 articles of the constitution, treated four new topics and “substantially curtailed functions of two branches” of the state government.  They further argue that Proposition 8 is not like another initiative declared to be a revision – an initiative requiring California to give fewer rights to criminal defendants by conforming to the federal, versus the state, constitution’s interpretation of such persons’ rights. The California Supreme Court found that this was a fundamental transfer of power from a state to the federal government, and a “wholesale diversion” from a stated original purpose of the state’s constitution.

Supporters of Proposition 8 also claim that their constitutional change is quite similar to another ballot initiative approved as an “amendment” in another California Supreme Court decision. It was an initiative to overturn that court’s earlier decision that the California Constitution banned capital punishment.  In the words of one of the amici supporting Proposition 8, both the capital punishment initiative and Proposition 8 are “initiatives adopted by the people just months after a …Supreme Court decision interpreting an existing provision of the state Constitution to declare new constitutional rights to which the people objected. Both…added new articles to the …constitution, leaving unchanged the original articles upon which the state Supreme Court’s previous decision relied, and each of the new articles specified…narrowly what the state constitution means and how it is to be interpreted and applied, then to the death penalty and now to marriage.”

Opponents of Proposition 8, on the other hand, argue that it is a “revision” because it severely compromises “the core constitutional principle of equal protection of the law, depriving a vulnerable minority of fundamental rights, inscribing discrimination based on a suspect classification into the Constitution, and destroying the courts’ quintessential power and role of protecting minorities and enforcing the guarantee of equal protection under the law.” They eschew supporters’ reliance on the brevity of Proposition 8’s language, and call its effects to the court’s attention.  They write that by “mandating discrimination” and tying courts’ hands from their usual role, the “underlying principles” of the California constitution are discarded and the “system of checks and balances” between governmental branches is fundamentally altered.  Within this argument, they make the sub point that “equal protection” is not an isolated or discrete guarantee of the state’s constitution, but a principle that permeates its entire fabric.

To this point, supporters of Proposition 8 respond that its opponents fundamentally misunderstand the nature of the initiative; it is not denying a fundamental right to a class of persons, but clarifying the very scope of that right, and restoring it to its former understanding, in order to “better carry out the purpose for which it was framed.”

The California Supreme Court has a very “activist” history on the same-sex “marriage” question. The pessimistic might very well conclude that the court will find a way, any way, to strike down the people’s vote to preserve natural marriage.  But more is at stake here for California than the marriage question – which will in any event very likely be put to a ballot vote again in 2010, this time as spearheaded by homosexual interest groups.  Citizens’ rights to amend their own constitution are at stake in this litigation. And indeed, this initiative does seem quite similar in origins and constitutional effects to an earlier upheld initiative which overturned the California Supreme Court’s ban on capital punishment. [I am not placing myself on the side of the former ballot initiative here, only noting its status as an amendment or a revision].  Both initiatives seek to establish that the court read meanings into the state constitution that were not there historically and that the people did not approve. In any event, Californians and others will have to wait until the Spring of 2009 for an answer to the question now before the court.