Thoughts on the lawsuit challenging Prop 8

by on January 5, 2009  •  In Marriage

As of today, both the defenders of Prop 8 and its challengers will have filed their briefs with the California Supreme Court in the litigation seeking to overturn the popular vote that has reinstated a ban on same-sex marriage. (Amicus briefs are due in two weeks.) A number of commentators have opined that those seeking to have Prop 8 invalidated have little chance of success. My view: not so fast.

The theory behind the challenge is that Prop 8 should be categorized as a revision, rather than amendment, to the state constitution. (CA Attorney General Jerry Brown has a different theory, that I analyzed earlier.) Unfortunately, there is little case law on the criteria for distinguishing between amendments and revisions. The California Supreme Court in the past has upheld most voter initiatives as amending the constitution, but has rejected a few on the ground that they amounted to revisions and should have gone through a different voting procedure because of that. 

The power behind the distinction lies in the additional step that the state constitution requires for adoption of a revision. If a measure amounts to such a fundamental change that it should be considered a revision, it must be adopted by a two-thirds vote of the legislature (or a special constitutional convention) before being submitted to the voters.  Since the California state legislature has twice voted to permit same-sex marriage (both bills were vetoed by the governor), everyone understands that there is no way Prop 8 could survive if it were required to go through the revision process.

The Prop 8 case poses a question of first impression: whether an initiative that singles out a group based on a characteristic that has been found by the judiciary to be constitutionally suspect, and deprives that group (and no one else) of a right that the courts have found to be fundamental, constitutes such a profound incursion into the principle of equal citizenship that it should be considered a revision under California law.  Translated into more direct political terms – can a simple majority of voters deprive a stigmatized group of an especially important right, or should the greater restraint that attaches to the revision process be applied in those circumstances?

The answer is not obvious.  To take just the issue at stake in Prop 8, more than half the states have adopted constitutional amendments by popular vote that ban recognition of same-sex marriages. In most of those states, the law draws no distinction between amendments and revisions. But in Oregon, which does draw such a distinction, the state supreme court upheld a ban on same-sex marriage as an amendment, i.e. as not requiring the revision process.  In that state, however, the supreme court had not previously ruled, as the California Supreme Court ruled last May, that sexual orientation was a suspect classification, and thereby entitled to the highest level of judicial scrutiny when used as the basis for deprivation of rights.

i think that most of the prognostications of doom for the Prop 8 challengers are based on political rather than legal reasoning. The ruling that legitimated same-sex marriage in California was as close as it gets: a one-vote margin of 4 to 3 on the state supreme court. Voters rejected that outcome in November by a 52 to 48 per cent margin, which in California translates to an almost 600,000 vote difference. It begs the obvious to state that none of the three justices who voted against recognizing a constitutional violation in denying same-sex couples the right to marry would be likely to conclude that Prop 8 itself is problematic.  So in raw power terms, it boils down to the question of whether all four justices who voted to declare that same-sex couples have a right to marry will stick together and essentially buck the will of the voters who rejected their analysis. 

That's a huge political hurdle for the lgbt groups and their supporters who are challenging Prop 8. In my view, however, they have a strong argument on the merits.  Those who framed the ground rules for voter initiatives for California in 1911 recognized that some changes to the constitution would be so significant that they should be required to go through a much more deliberative and multi-tiered process. Were they thinking about equal protection principles?  In 1911, almost certainly not.  But the idea of a "living constitution" is that it is sufficiently strong and supple to evolve.  And today, principles of equal citizenship are recognized as central to our covenant for republican government.

I make no prediction about the outcome of this case.  It will require tremendous courage for all four justices in the majority from last May to insist that a revision, rather than an amendment, process be utilized in this instance. That would amount to a (state) constitutional interpretation that is arguably even more far reaching and unprecedented than their original decision on marriage – a profound degree of protection for equality rights, of the sort seldom seen in judicial opinions. IMHO, however, it would be the right decision.


4 Responses to Thoughts on the lawsuit challenging Prop 8

  1. Gib Wallis January 5, 2009 at 6:16 PM

    Very interesting thoughts.

    I’m of course refreshing the pages for the California Supreme Court and for Lambda Legal regularly to see the filings whenever they become available.

    With the numbers game you just mentioned, which argument do you think will fare better with the 4? The Attorney General’s argument or the angels against 8?

    Do you think 3 of the four will go on the basis of revision and Justice Kennard will go for the fundamental right? In other words, do you think Brown’s push for a different rationale may be a strategy to enable the lone member of the 4 who didn’t want to hear the case to engage with it once again?

  2. Mad Professah January 5, 2009 at 11:26 PM

    I personally think that they will uphold the 18,000 marriages and uphold Prop 8 as an amendment but then say it is an invalid amendment to repeal a fundamental right granted by the courts, separating it from Oregon’s situation and not disrupting their previous jurisprudence in amendment/revision cases (all 6 of them!)

  3. Nan Hunter January 6, 2009 at 9:37 AM

    Both of the above comments offer smart, entirely plausible predictions. I have no idea how this case will turn out. I think the challengers’ brief does an excellent job of utilizing the AG’s position to their advantage. But it’s a genuinely tough question intellectually and a huge lift politically. At oral argument, I’m going to be watching Justice Kennard. If she doesn’t seem willing to bite at the AG’s theory – and since it’s likely (although not absolutely certain) that she finds the revision argument quite underwhelming – then there’s not much hope for 4 votes on any theory for overturning Prop 8.

  4. Dana Chilton January 27, 2009 at 6:07 PM

    I’ve been following this case nearly every day since December. I’ve read both cases and every amicus brief. I firmly believe that the court will invalidate prop 8. I also believe that it will be by a larger than 4-3 majority. Here’s why: The issue is no longer same-sex marriage. Even justices who disagreed with the original “Marriage Cases” accept that the majority opinion became constitutional law. The issue now is equal protection and the scope of the power of the initiative process. Conservative jurists will likely uphold equal protection even if they would not have previously held same-sex marriage to be a constitutionally protected civil right. Also, The Attorney General has immense sway with the court. His unprecedented move to ask the court to invalidate prop 8 may convince even more conservative justices. The State, though the AG has deemed Prop 8 unconstitutional. To uphold prop 8, the court would have to ignore its own precedent in “Marriage Cases”, the will of the State, The legislature (which is set to pass a resolution officially declaring prop 8 an unconstitutional revision), and the voices of civil rights leaders, religious organizations, and bar associations. I cannot see this court doing that, nor allowing the evisceration of our equal protection clause by a bare majority of voters.

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