On the Prop 8 challenge case

by on December 1, 2008  •  In Marriage

The following column by Professor Vik Amar of UC-Davis Law, posted on Writ, analyzes the recent decision by the California Supreme Court to consider the question of whether Prop 8 violated state law and what effect it will have, if any, on marriages between s/s couples that occurred before the election. As Professor Amar indicates at the end, there will be a subsequent installment analyzing the merits of the underlying arguments; I will post that as well.


It is hard to infer much about the California Justices' views on the merits of this case from their decision to take the matter up. All sides seemed to agree that providing legal certainty and resolution on the question of the validity and meaning of Prop. 8 was important enough to justify immediately hearing the case in the Supreme Court (rather than waiting for the case to come up through the lower state courts). …

One Justice, Justice Moreno, voted to grant the stay of Proposition 8. Granting the stay would have been a particularly plausible thing for a Justice to do if he was relatively sure that Prop. 8 would or should be invalidated. …

Another Justice, Justice Kennard, would have declined to hear the challenge to Prop. 8 altogether (although she did signal interest in resolving the question of the status of existing marriages entered into before the Nov. 4 election). Justice Kennard's action seems to be an ominous sign for the challengers to Prop. 8: She was one of the four Justices who voted last May in favor of the gay-marriage-right proponents, and thus it seems unlikely that Prop. 8 could be invalidated unless she were also to become part of the group of Justices invalidating it. And yet her vote Wednesday to deny review at least suggests (but, of course, does not establish) that she doesn't find the challenge to Prop. 8's validity to be worthy of the court's attention.

The basic challenge against Prop. 8 is that it so fundamentally alters the state constitution and the power of courts to do their job that it constitutes a "revision" under state law, which must be accomplished through a process more elaborate than the "amendment" process Prop. 8 in fact went through.

An "amendment" can be placed on the ballot for voter approval if two-thirds of each house of the legislature votes to place it on the ballot or if enough voter signatures are gathered to qualify the measure. A "revision," by contrast, can be put on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it (or if a legislatively-proposed state constitutional convention decides to place it on the ballot). ,,,

The key and difficult question, of course, is what differentiates "amendments" from "revisions." The California constitutional text itself offers few clues. However, the California Supreme Court — in the few rulings in which an initiative measure was struck down because it went through the amendment process when in fact it was a revision — has given some guidance. The court has said, for instance, that a measure is a revision if it "substantially change[s] our preexisting government framework" or makes "a fundamental change in our preexisting governmental plan." Revisions, the court has also stated, "involve changes in the underlying principles on which the Constitution rests."

A Key California Supreme Court Precedent on the Revision-Versus-Amendment Distinction

The court has, in more than one case, given a standard hypothetical example of such a change: a measure that would "vest all judicial power in the Legislature." Such an alteration in the respective powers of the judicial and legislative branches, says the court, would profoundly change the "scheme" of government so as to be a revision.

In Raven v. Deukmejian, a 1991 case and the most recent ruling by the court holding a measure to be a "revision," the court considered an initiative that directed the courts of California to construe a set of state constitutional rights of criminal defendants to afford no more protection than that provided for by the United States Constitution. The set of rights 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 power from the California Supreme Court to give independent meaning to 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 court explained the import and magnitude of the change that the measure would bring about: "As a practical matter, ultimate protection of criminal defendants . . . would be left in the care of the United States Supreme Court [and taken away from the state Supreme Court. . . . The measure] in practical effect, 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 some earlier cases in which it had rejected claims that initiative measures were revisions, rather than amendments — including a case involving a measure that directed state courts to construe the state constitutional ban on "cruel and unusual punishments" to be no broader than the federal Eighth Amendment's prohibition. Those earlier cases, the court said, involved "isolated provisions," did not concern "far reaching, fundamental changes in our governmental plan," and 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 revision label (and the onerous revision process) did not apply.

Is the California Supreme Court Likely to See Proposition 8 As A "Revision" or An "Amendment"?

What are we to make of the California Supreme Court's explanation of what a "revision" is? And how does the court's explanation apply to the present dispute over Prop. 8?

For starters, the court's suggestion that revisions describe significant changes to the 'structure of government' must be taken with a grain of salt. Notice that the examples the court gives of things that must go through the revision process — a shift in power from state courts to the state legislature or from the State Supreme Court to the United States Supreme Court — tend to involve diminutions of judicial power in particular. What if an initiative tried to change the state constitution to alter or reduce legislative, rather than judicial, power? Say, a term-limits measure for elected legislators? Or a measure taking the job of drawing legislative district lines away from the legislators? These changes might be thought to alter the "framework" or "plan" or "scheme" of government in major ways, and yet it is not clear they would be considered revisions.

Nor should such changes be considered revisions: It makes very little sense to require the legislature to approve (or convene a state constitutional convention to approve) measures that are themselves designed to check the legislature. Circumventing legislative inertia or self-dealing was precisely why direct democracy devices like the initiative came into being in the first place, and (legislative) foxes simply ought not to be allowed to guard (reform) henhouses.

So the court's seemingly greater skepticism about measures that rein in judicial power, as opposed to legislative power has some plausibility, although it does of course raise questions about whether judges should be the judge of their own powers — a basic conundrum attending the institution of judicial review for over two centuries. This conundrum is especially acute when judges, as in Raven and the current dispute, are called upon to assess the validity of a process that is itself supposed to be a check on, and a response to, the court's prior exercise of judicial review. In the federal court system, judges might abstain from resolving such validity disputes under the so-called "political question" doctrine. If the slate were clean, judicial abstention by the California court in cases like Raven and the Prop. 8 dispute — abstention which would leave the executive branch the most likely candidate to decide the legality of the measure in question — would seem similarly attractive.

All of this brings us to back to the current lawsuits, and what the court ought to do. On its face, Prop. 8, unlike the measure in Raven, doesn't explicitly limit or shift judicial interpretive power (except in the way that any change in the constitution repudiating an earlier judicial ruling limits judicial power to interpret the way the prior case did). It doesn't speak directly to what judges should do in performing their jobs at all. Instead, Prop. 8 substantively changes the meaning of state equal protection law as applied to the context of gay marriage.

A Topic for the Next Column in this Series: The Argument that Proposition 8 Is In Fact a "Revision," and Whether It is Convincing

How, then, can the challengers to Prop. 8 argue that it should be considered a "revision?" What's their reason for suggesting that repealing the equal protection rights of a traditionally disadvantaged group is necessarily a change in the "framework" of government or an alteration of the fundamental judicial role? What kind of coherence and/or slippery slope problems do their arguments raise? And is the court the right institution to really resolve the dispute?

I'll take these questions up in the next installment.


Leave a Reply

Your email address will not be published. Required fields are marked *