CWL Reports on The California Supreme Court's Prop 8 Decision
Click here for a summary of and links to the Court's decision.
In November 2008, the California electorate approved an initiative – Proposition 8 – that overruled the Supreme Court’s earlier decision in the In re Marriage Cases, which extended the legal definition of “marriage” to include same-sex couples. Proposition 8 added the following constitutional provision: “Only marriage between a man and a woman is valid or recognized in California.” Immediately after the vote, several parties filed petitions asking the California Supreme Court to consider the constitutionality of Proposition 8. The Supreme Court agreed to consider the challenges and set an expedited briefing schedule.
Oral argument was heard in March 2009, and the court issued its decision upholding Proposition 8 on May 26, 2009.
The dispositive legal issue is a dry one: Does Proposition 8 amount to a constitutional “amendment” (which can be effected through the majoritarian initiative process) or a “revision” (which requires more than a simple majority vote)? If Proposition 8 is deemed a “revision,” then the initiative process was improper and the Proposition unconstitutional.
The court held that a constitutional “revision” must have the quantitative and qualitative effect of changing the “basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.” According to the court, the amendment versus revision dichotomy depends not on the “relative importance” of the change, but rather on its “scope.”
Under this rubric, the court held that Proposition 8 – narrowly construed – does not undermine our Constitution’s “basic governmental plan or framework.” To reach this result, the court seemed to retreat from much of its sweeping language in the Marriage Cases. The court upheld Proposition 8 because it does not “fundamentally alter the meaning and substance of state constitutional equal protection principles . . . Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reversing the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.” The court got around its earlier holding by interpreting Proposition 8 as a “limited exception to the state equal protection clause as interpreted in the majority opinion in the Marriage Cases.”
After disposing of other arguments, including a separation of powers challenge, the court considered the Attorney General’s contention that Proposition 8 abrogates fundamental rights protected by article I, section 1 of our state Constitution. The Attorney General’s argument was similar to that raised in CWL’s amici brief: That the rights enumerated in article I, section 1 (including the right to marry) are inalienable and thus cannot be abrogated.
The court sidestepped this challenge by, once again, minimizing the impact of Proposition 8, saying that Proposition 8 does not abrogate any constitutional rights of privacy or due process – all that it does is strip the term “marriage” from same-sex couples. In the court’s view, that inequality was not enough to hold the Proposition unconstitutional.
The court’s opinion then veers into dangerous territory by saying that even “inalienable” rights are not necessarily “totally exempt from any limitation or restriction.” To the contrary, the court says that there has never been an understanding that an “inalienable right” is immune to a constitutional “amendment” – which is effected by a simple majority vote. These few pages of the court’s opinion are the most troubling, and run counter to the very notion of “inalienable rights” and “suspect classes.” The court may well have opened the floodgates to initiatives seeking to enact constitutional amendments modifying the most basic of all constitutional tenets: The need to protect the minority from the majority.
The court also held that Proposition 8 cannot be applied retroactively because there is no extrinsic evidence that the voters intended retroactive application. Moreover, retroactive application would pose a “serious potential conflict with the state constitutional due process clause” because it would divest a legitimate, vested right afforded to same-sex couples married following the Marriage Cases.
