I apologize if the profusion of Proposition 8 posts is getting monotonous, but this is an issue I care about a lot, so I’m back for another one. Speaking to Ayudaren shortly before the election, he pointed out (or rather, his mother pointed out) that should Proposition 8 pass it would almost certainly precipitate an immediate federal court challenge. At the time, he wondered if this would be the catalyst that would finally force the federal supreme court to weigh in on the issue.
As it happened, the court challenge did materialize – but surprisingly, it was another challenge in state court. Strauss v Horton is the case, presently proceeding before the California supreme court, seeking to get Proposition 8 overturned.
When I first heard about this I was extremely skeptical. After all, a constitutional amendment cannot itself be unconstitutional. If the constitution explicitly says, “Marriage is between one man and one woman,” then that provision stands even though elsewhere the constitution says everyone has a fundamental right to marry. The effect of the two together is simply to define what that right to marry actually looks like. Declaring Proposition 8 unconstitutional on the basis of In Re Marriage Cases would be like declaring the 16th Amendment unconstitutional because Article I prohibits income tax.
Turns out, the plaintiffs’ argument in Strauss is rather more nuanced than that. They are arguing not that the substance of Proposition 8 invalidates it, but rather the way it was passed.
The California constitution can be explicitly altered in one of two ways: by “amendment” or by “revision.” An “amendment” may be put to the people by 2/3rds of the legislature, or through the initiative process. A “revision” may only be put to the people by 2/3rds of the legislature, who may also (again by a 2/3rds majority vote) put to the people the question of whether to call a constitutional convention to “revise” the constitution.
Both “amendments” and “revisions” require a mere majority vote once put to the people for ratification. The key difference is that only “amendments” may be put to the people via initiative, as Proposition 8 was. So the question is, was Proposition 8 an “amendment” or a “revision?” If the former, then all is well and the vote stands. If the latter, then Proposition 8 should never have been on the ballot to begin with and it will not stand.
Unfortunately the constitution provides not a word of guidance as to the difference between an “amendment” and a “revision.” Court cases are rather thin on the ground as well (you might imagine this sort of thing hardly comes up very often).
The leading case, Raven v. Deukmejian, 52 Cal. 3d 336 (1990), concerned an “amendment” put to the people by initiative. The amendment in question was 21,000 words long, substantially altered or outright repealed 15 of the 25 articles of the constitution, dealt with a very broad range of issues, and prevented the state supreme court from interpreting the state constitution in a more defendant-friendly way than the federal supreme court interpreted parallel federal constitutions (the normal rule being that a state supreme court cannot contravene a federal right as construed by the federal supreme court, but is otherwise free to interpret its state constitutional rights as it sees fit – a natural extension of the rule that a state’s supreme court is the supreme authority on that state’s constitution).
In holding that the Raven proposition was a “revision,” the court noted that it constituted a “broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution.” The court explained that telling the supreme court how to do its job (mandating that they use the same reasoning as used by the federal supreme court), and altering such a vast swath of the constitution were “far reaching, fundamental changes in our governmental plan.”
By contrast, twice before the court had held that propositions were actually “amendments” rather than “revisions.” One case (People v. Frierson, 25 Cal.3d 142, 184-187 (1979)) essentially put the death penalty back into the constitution, even though the state supreme court had previously held that it violated the fundamental right to be free from cruel and unusual punishment. That was held to be an amendment, not a revision. Another (Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980), affirmed 458 U.S. 527 (1982)) essentially overruled a court decision that unintentional but de facto school segregation violated the fundamental right to equal protection. That was also held to be an amendment.
Putting these cases together, the picture that emerges is something like this: revisions constitute fundamental changes to the way our society is put together. Taking away the judicial power from the judiciary is a “revision.” Massive changes to the text of the constitution is a “revision.”
Proposition 8 is, on its face, neither of those things. It has only 14 words. It deals with one specific right (the right to marry) found in one specific section of the constitution. It has nothing to do with the allocation of powers between the branches of government; it alters the text of the constitution but, the supreme court remains as free as ever to interpret that text as it sees fit.
So how is it that the plaintiffs in Strauss argue that Proposition 8 constitutes “far reaching, fundamental changes” to our very plan of government? The argument goes that because homosexuals are a constitutionally protected “suspect class” (true in California, uniquely in America) and Proposition 8 takes away a “fundamental right” (the right to marry), Proposition 8 constitutes far reaching, fundamental change in the constitution’s underlying principle of equality. Moreover, plaintiffs argue, by denying homosexuals the right to marry, Proposition 8 takes away one of the court’s core constitutional roles (that of ensuring equal protection under the laws) and thus constitutes far reaching, fundamental change to our plan of government.
I am in favor of gay marriage in California, but I think these are bad arguments. They aren’t laugh-out-loud stupid, but I think they deserve to lose on their merits. In turn:
The first argument goes that taking away a fundamental right specifically from a suspect class is violating a core principle of our society, and that constitutes a fundamental change to our very plan of government. I do not think this is true. In the first place, Proposition 8 only sort of takes away the right to marry. It takes away the right to marry someone of the same sex, but it does not take away the right to marry someone of the opposite sex. Neither is Proposition 8 actually targeted at the suspect class. It applies equally to homosexuals, heterosexuals, those who wish to marry more than one person, and those who wish to marry partners who are neither men nor women. Of course it happens that at present there are far more homosexuals wishing to get married than people wishing to enter into plural marriages or non-human marriages, but that need not always be the case. There’s a big difference between “marriage is between one man and one woman” and “homosexuals cannot get married.”
I recognize that this argument may strike many as pedantic, though, so let’s grant for the sake of argument that Proposition 8 takes away a fundamental right from a suspect class. Is that really a fundamental change in the way our society works? Granting for the sake of argument that one of our democracy’s core principles is violated, is the very structure of the democracy itself overthrown or substantially altered? I don’t think so. Rights are not the same thing as structure. And while I recognize that taking a right away is different than not having it in the first place, it is difficult for me to imagine that returning things to the status quo of 2007 can constitute a fundamental change to our plan of government (in fact we haven’t even returned to the status quo ante; homosexuals remain a suspect class in California).
The second argument in Strauss goes that one of the traditional core roles of the judiciary is to ensure equality for all, and because Proposition 8 would take away the courts’ ability to ensure homosexuals the equal right to marry, it impinges upon the traditional core role of the judiciary and thus constitutes a far reaching, fundamental change in our plan of government. This argument seems wrong to me for a couple of reasons.
For one thing, it isn’t true that one of the traditional core roles of the judiciary is to ensure equality for all. The judiciary is supposed to ensure equal treatment before the law and, as I said above, Proposition 8 is a facially neutral law.
For another, I don’t see the difference between this argument and either Frierson or Crawford. In both those cases a supreme court ruling based on fundamental rights was invalidated by initiative. The court held those cases to be amendments, not revisions, even though it recognized that the amendments necessarily impinged somewhat upon the judiciary. Once again we have a case where an initiative would partially invalidate a supreme court decision founded upon a fundamental right. I don’t see a meaningful distinction between this case and those.
It is true of course that Proposition 8 takes away the courts’ ability to ensure that homosexuals (and heterosexuals) may marry a person of the same gender. But that is not the same thing as taking away the judiciary’s ability to ensure equality under the laws, or telling the judiciary how to think and reason. Homosexuals remain a suspect class under California law, and the judiciary is free as ever to apply strict scrutiny to legislation that targets or can be shown to have a disparate impact upon them.
Some commentators have made a third argument, which I do not believe has been formally made in Strauss but which deserves to be discussed nonetheless. This is the argument that fundamental rights should not be able to be taken away by a mere majority vote. Elsewise, some argue, the rights of the minority are not really protected from the majority. One could apply this line of reasoning to the amendment vs. revision issue to suggest that any change to the constitution disproportionately affecting the fundamental rights of a minority must be a revision. The constitution doesn’t say as much, of course, but isn’t it one of the fundamental principles of our society that the rights of the minority are protected against the tyranny of the majority?
I would argue not. It is true that one of the reasons society institutes constitutions and governmental branches like the judiciary is to protect the rights of the minority. But those are cases of the majority saying, “We would like to be restrained in the future from doing these certain things, and we shall appoint you, our servants, to restrain us.” The judiciary, and indeed the constitution, remain subordinate to the sovereignty of the people, which is controlled by the majority. If the majority really wants to throw off the restraints it has placed on itself, it is allowed to do so. There is no way to get any other result without also overthrowing the democracy.
This is not to suggest that the fundamental basis of the Strauss challenge is unfounded. It is not; the people of California have asked our servants to restrain us from throwing off certain restraints except in certain very specific ways, and it is absolutely proper for the supreme court to hold us to that. But it is to suggest that there is nothing inherently suspect about the 50%-of-the-electors threshold as opposed to the 66%-of-the-legislature threshold, nothing to suggest that something is a automatically a revision because it affects the rights of a minority.
I’m not nearly as close to this case, the facts and the precedent and the arguments, as are the justices of the supreme court and the advocates. It may well be that there’s something here I’m not seeing. But as I understand the law and the arguments, it seems to me that Proposition 8 really was an amendment, not a revision. I’m sure I’ll post further on this issue as it develops.