California Prop 8 Aftermath: Strauss v. Horton, the State Court Challenge

Immediately after Californians approved Proposition 8, an initiative measure amending the state constitution to declare that only a marriage between a man and a woman "shall be valid or recognized" in California, opponents have filed a petition for writ of mandate with the California Supreme Court.  The contention is that Prop 8 is invalid because it constitutes a "revision" of the California Constitution instead of an "amendment."  While amendments may be added by popular initiative, revisions can only be accomplished by either a constitutional convention plus ratification by the people, or legislative proposal ratified by the people.  The leading case on the distinction between an amendment and a revision is Raven v. Deukmejian, 52 Cal. 3d 336 (1991), in which the California Supreme Court ruled that a portion of Prop 115, an initiative, was a revision and thus unenforceable.  The provision found to be a revision specified that most of the state constitutional rights afforded criminal defendants could be interpreted no differently than the US Supreme Court interprets the analogous right under the federal Constitution.  The California court placed most reliance on the fact that the effect of the measure was to strip the California courts of any independent authority to interpret the state constitution, and that this was a fundamental reorganization of the constitutional structure. 

Enter Prop 8.  At least two other cases, People v. Frierson, 25 Cal. 3d 142 (1979), and Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980), affirmed 458 U.S. 527 (1982), have held that popular initiatives that materially changed the meaning of a central constitutional right were amendments, not revisions.  Frierson upheld an initiative reinstating the death penalty after the California Supreme Court had ruled that capital punishment violated the state constitution's prohibition on cruel and unusual punishments.  Crawford implicitly held that an initiative eliminating busing of students to accomplish racial integration in cases of de facto (rather than de jure) racial discrimination was not a revision.  (The initiative was a reaction to a prior decision of the California Supreme Court holding that unintentional, de facto, racial segregation in the public schools violated the state constitution's equal protection clause.)  The contention of the Prop 8 opponents in Strauss v. Horton is essentially that an elimination of a judicial intepretation of California's equal protection guarantee works such a fundamental change in the constitutional structure than it can only be accomplished by revision.  Yet, Frierson and Crawford upheld initiatives that did just that.  (Crawford did so at most by implication.)  The Prop 8 opponents distinguish both cases (the Frierson change applied to all Californians, Prop 8 only applies to gays and lesbians; Crawford only involved a remedy), but I am not convinced by either attempt to distinguish these cases.  Raven involved a complete abdication of constitutional independence; Prop 8 is a specific limit on the intepretation of California's equal protection guarantee but otherwise leaves California courts free to do what they have always done in interpreting the state constitution. 

I understand why Prop 8 opponents prefer to kill Prop 8 under state law:  The adequate and independent state grounds doctrine would insulate a decision that Prop 8 is a revision from further attack, and it is improbable that a new version of Prop 8 could return as a proposed revision.  But the political stakes for the California Supreme Court are very high.  Former California Supreme Court Justice Otto Kaus once quipped that judicial ignorance of the will of the people is like ignoring the alligator in your bathtub.  Lurking behind Strauss v. Horton is the memory of the people's removal of three California Supreme Court justices twenty years or so ago over the issue of the death penalty.  "Vote Three Times for the Death Penalty," was the rude slogan then, and it worked.  I doubt that the current crop of justices are unaware of that episode in California's history.

For better or worse (no pun intended), this is an issue that ultimately must be fought out in the context of the federal Constitution.  Finally, to be clear, I have no stake in the outcome of Strauss v. Horton.  I write as an observer, not an advocate for either side.   

Comments

[Jackson H]

With all due respect, Professor Massey, I think your legal analysis is sloppy here. From my perspective, Prop 8 did more than change the scope of a fundamental right (equal protection), as you assert here. By stripping a fundamental right solely from one (suspect) class off people, Prop 8 has essentially removed the equal protection clause from the California Constitution entirely. It allows any right to be stripped from any group based on a simple majority vote. The additional procedural protections of the revision process would amount to nothing if such a drastic reframing of the basic foundational tenets upon which the California Consitution is based could be changed on a simple majority vote. If Prop 8 is not a revision, it is unclear when, if ever, the revision clause would apply.

I recommend that you reread In re Marriage Cases and the ACLU's petition in Strauss v. Horton

[Fernando P. Orlandi]

As a person who, as a gay man, is harmed by Proposition 8 (and believe me, it is causing me real emotional and physical pain), I am disturbed by the suggestion that the California Supreme Court may be guided by political wind, rather than justice in deciding the fate of Proposition 8. I am not a lawyer, and so I know little about constitutional law, but I can't imagine any constitution that allows a majority to strip a minority of a fundamental right.

[Zilcheron]

Really, Mr. Orlandi, physical pain?

What about the emotional pain the great majority of Californians felt when the California Supreme Court decided to rewrite the state Constitution to permit (oxymoronic) "same sex marriage?"

Prop. 8 was required to drag the law back onto the course set by the people. If the CA Supreme Court invalidates Prop. 8 the people would be justified in recalling the recalcitrant members of the court.

The legal theory that says the CA Supreme Court may purport to invent a fundamental right, but the people themselves cannot correct its error, is obviously bogus. As the Constitution itself says, the legislative power derives from the people and they may exercise it themselves. They did that with Prop. 22, which put the CA Supreme Court on notice that the people, from whom all Constitutional legislative and judicial powers derive, did not authorize gay marriage. That Court's In Re Marriage Cases decision was contrary to law. Every justice who voted for it should feel ashamed because he betrayed his office and violated his judicial oath.

Gay marriage may be a good idea, but it is a complete novelty and there is no basis in law to call it a "fundamental right." It is no right at all, just a privilege desired by some who have not been able to persuade more than a minority of the people to agree with them.

[Zilcheron]

Please, you-all, stop writing that Prop. 8 "stripped" anyone of a right. You can't be stripped of something you don't possess. The supposed right to same-sex marriage never existed. It didn't exist when California belonged to Spain, or when it belonged to Mexico, or when it became an independent republic and adopted the Common Law, or when it became a territory, or when it joined the United States, or when the Hiram Johnson Constitution was adopted, or when Prop. 22 was adopted, and the said right could not be called into existence by the obviously wrong (and ultra-vires) In Re Marriage Cases decision. Prop. 8 merely corrected the CA Supreme Court's error. Since your supposed "right" to same-sex marriage was void ab-initio, Prop. 8 did not constitute a "revision" of the CA Constitution. It merely amended it to clarify that the CA Supreme Court lacked authority to revise California marriage law (adopted by the people in Prop. 22) to include "same-sex" partnerships.

[Fernando P. Orlandi]

Mr. Zilcheron:

Yes, physical pain! And I know that my marriage with my partner of 22 years has caused pain to no-one.

Also, please remember that our democracy has three branches. The judiciary branch is there to protect all of us from injustice. We do a disservice to our democracy if we formulate threats, like you are, to judges should they rule in any particular way.

[Calvin Massey]

Jackson:
Thank you for the comment. Let me provide two additional reasons why I believe your analysis to be mistaken. 1) I can think of few things more fundamental than freedom from having the government kill you, yet in Frierson the California Supreme Court concluded that an initiative reversing the judgment of the Court that capital punishment is a forbidden cruel and unusual punishment was an amendment, not a revision. If the Court honors its own precedent, it is extremely difficult to avoid this decision. The petitioners in Strauss seek to distinguish Frierson by claiming that the change at issue there applied to all Californians, but of course the only people affected by it were those who were convicted of capital crimes. 2) There is no requirement that a state include an equal protection clause in its constitution, so even if Prop 8 does what you claim (which I think is a considerable overstatement) the hypothetical elimination of the equal protection clause (while admittedly a closer case than Prop 8) is probably not a revision under Raven v. Deukmejian. Of course, the equal protection clause of the 14th Amendment to the US Constitution would continue to apply to a state that did eliminate its equal protection clause, and the 14th Amendment's EP clause continues to apply in the wake of Prop 8.

Mr. Orlandi:
Thank you for your comment, too. I appreciate the pain you express. I do not think that the decisions of the California Supreme Court are the product of political calculation only. I do think that it is an unavoidable fact that judges, being human, cannot escape the boundaries of their own experience, past and present. Judges try to render decisions in accordance with the law, and do their best to ward off extraneous and irrelevant considerations. But as Justice Robert Jackson of the US Supreme Court said, over a half-century ago, (speaking of the US Supreme Court), "never forget that the Court is both a court and a branch of government." That observation applies to state supreme courts, too.

[Josh]

Calvin,

Would an initiative that forbade interracial marriages pass muster as an amendment (forgetting about the obvious federal constittional issues)?

[Calvin Massey]

Josh,
Yes, under the rationale of Raven and Frierson, I think existing precedent suggests that it would be an amendment, not a revision. Of course, it would be invalid ab initio under the 14th Amendment. Revisions amount to structural reorganizations of the Constitution. Amendments alter the substantive scope of constitutional rights. The two categories are distinct. Raven ruled that a complete abdication of constitutional independence was a stuctural reorganization. As odious as the hypothetical you offer may be (and as odious as Prop 8 may be) they are not structural changes. The revision v. amendment issue is not a matter of choosing one's policy preferences.

[Josh]

Calvin,

Thanks for your thoughts. I agree with your conclusions based on the precedent (and most certainly would rule that Proposition 8 is an amendment if I sat on a lower court). But I wonder if this case presents new questions not explored by precedent that require another look at the public-policy objectives of the revision/amendment dichotomy.

I'm not arguing that such an examination will lead to the conclusion that Proposition 8 is a revision (I haven't made up my mind, having not seen such an examination). However in light of the new issues raised here (as animated by my hypothetical), it strikes me as hasty to conclude that we should stick with the precedent that revisions are limited to structural reorganization.

Either way they decide, I hope the California Supreme Court fully debates the purpose of revisions and fully discusses the implications of the purpose rather than blindly falling back on precedent.

[Fernando P. Orlandi]

Please indulge me again. I stumble in this debate by change, and I like to put my two cents in it, even though my formal education is in Mathematics and not Law.

I can’t understand how the death-penalty precedent would apply to Proposition 8. The distinction that the death-penalty case applies to all Californians, while Proposition 8 applies only to a minority makes a lot of sense. All of us are subject to criminal law only when we commit a crime, in the same way that we are subject to the marriage law only when we decide to get married. The real distinction is the following: the voters who voted to restore the death penalty knew that they would be subject to the death penalty, should they commit certain crimes; however, when heterosexual voters voted for Proposition 8, they knew that Proposition 8 would not affect them, should they decide to marry. And that is the distinction.

[Calvin Massey]

Mr. Orlandi:
One can look at the two measures -- death penalty and marriage restricted to opposite-sex partners -- in several different ways. On their face, they each apply to all Californians, but in practice they will only apply to some Californians. While it is true that anyone could commit a capital crime, I think it safe to say that almost everyone voting on that measure could never imagine actually being subject to the death penalty. It is no doubt true that most Californians voting on Prop 8 could not imagine it ever applying to them, but I suspect that many more Californians could readily imagine its applicablity to themselves or those they love than they could imagine the death penalty being applied to them. Even hetereosexual voters could easily contemplate a child, a sibling, a niece or nephew, or a good friend being affected by Prop 8's restriction, but I think that it would be much harder for most people to imagine the reality of the death penalty being applied to the same set of people.
One could also see the two measures as only applying to a small category of people -- death penalty: persons convicted of heinous crimes and Prop 8: gays and lesbians committed to an enduring relationship. (I know; it seems weird to draw parallels between criminals and loving couples, but the parallel is not any kind of moral equation; it is simply a legal analogy.)
Either way the measures are viewed the parallel between them in terms of the nature of the constitutional alteration -- which is the only reason to be comparing the two -- seems very similar to me.
Though of little solace to you, it seems to me that it is quite likely that same-sex marriage will be broadly accepted within a generation, and perhaps much sooner. I know it must seem like I am an anatagonist to your position, but I am actually simply trying to do what I think a good judge should do -- detach himself from personal preferences and examine critically what the proper legal resolution should be. I think the text, history, and prior interpretations of the California Constitution evidence a strong commitment to allowing the people to alter the Constitution in reaction to constitutional decisions of the California Supreme Court that they regard as inappropriate.

[Jackson H]

Actually, Mr. Orlandi and Josh both make excellent points, for a reason that has not yet been mentioned. In In re Marriage Cases, the Supreme Court stated that the fundamental right to marry extends not only to individual persons, but also the couple seeking to marry. Thus, Mr. Orlandi's point that that the death penalty amendment applied to all Californians while Proposition only applies to some still stands. Prop 8 only applies to same-sex couples, not to opposite sex couples.

The argument that Prop 8 applies to "all Californians" because it takes away every single person's right to marry a person of the same sex must fail, because the Constitution's protection of the right to marry extends beyond single persons, it includes couples. Prop 8 only applies to some couples, not all California couples. Both gender and sexual orientation are suspect classes, under California jurisprudence.

In short, Mr. Orlandi's & Josh's assertions that this case present an entirely new constitutional issue still stand.

I agree with Josh that the court should consider the purpose of the amendment/revision distinction in deciding this case. In my view, Prop 8 invokes precisely the concerns that must have been anticipated when that distinction was placed into the Constitution.

Prop 8 not only eliminated a fundamental right solely for one suspect group, but also changed the underlying function and nature of California's Equal Protection clause, and fundamentally changed the judiciary's role in administering the law.

If the Court allows Proposition 8 to stand, it will mean that California voters can deprive any minority group, including those in suspect classes, of any fundamental right. (Forcing homosexuals to wear pink triangles? Prohibiting black people from being in public after dark?) This is a drastic reframing of the California Constitution, and was clearly not anticipated when the Constitution was amended to allow amendment by simple majority vote. These are exactly the sorts of abuses that the revision clause was included to limit.

[Kody McConnell]

Mr. Massey,

The petitioner's brief in Strauss v. Horton is exceptionally powerful in light of the precedent set by In re Marriage Cases in regards to the finding of a fundamental right to marry the person of one's choice under the California Constitution and the legal designation of groups with minority sexual orientations as a suspect class.

As a result, the qualitative effect of Proposition 8 is both profound and far-reaching in relation to California's basic governing plan as it eviscerates the equal protection clause of the California Constitution. Unless the Court intends to invalidate or ignore its previous ruling there is no reason to believe that this litigation is either "frivolous" or "absurd" despite the solipsistic outrage of the Alliance Defense Fund.

Petitioners clearly distinguish Proposition 8 from the initiative in question in People v. Frierson using the precedent set for suspect classification of gays and lesbians and the fundamental constitutional right to marry in In re Marriage Cases. Frierson was the keystone of the respondent's brief back when the petitioners motioned for pre-election review last summer. Should the Court respect its precedent the remaining arguments of the respondents will ring hollow.

The real question here is political rather than legal in nature. Are the majority justices in In re Marriage Cases fearful of popular backlash and recall initiatives? This is an open question that can only be speculated upon. However, with a simple majority of 52% of Californians voting for Proposition 8, it is not as though there is an overwhelming electorate protesting at the gates. Indeed it is the opponents of Proposition 8 who have been most vocal and active since election day. Likewise they are equally well-funded as the proponents, even without the tens of millions of dollars from organized religions.

It is legal questions like this that necessitate the primacy of an independent judiciary in our constitutional republic. Let us hope our system is able to live up to its ideals instead of succumbing to its most base instincts.

[Calvin Massey]

As I have tried to make clear before, a revision is a structural reorganization of the Constitution and an amendment (in the case of rights bearing provisions) is an alteration to the scope of the right. Raven involved a complete transfer of judicial power to interpret a portion of the California Constitution to the US Supreme Court. That's a reorganization. Frierson and other cases like it involved a restriction on a pre-existing fundamental right as found by the California Supreme Court. That is exactly what Prop 8 did. The fact that the California Supreme Court, in the Marriage Cases, found gays and lesbians to be a specially protected class under the Cal Const's EP clause is of no significance to the question of whether Prop 8 revises or amends the Constitution. Given past precedent, the people have a right to remove or restrict constitutional rights by amendment. Some of those changes may be abhorrent, some may violate the US Constitution, some may be bad policy, some may be good policy, but all of them are within the people's power to amend the California Constitution. Of course these issues are political, and the California Supreme Court may break new ground in defining a revision. That would be unwarranted and a poor decision. Poltically appealing outcomes often create bad law. The voters have spoken, and they have acted within the pre-existing rules of the California Constitution. People who don't like the outcome should challenge it under the federal Constitution, or mount their own petition drive to repeal Prop 8, or both. I have said enough. Let the Court speak.

[Kody McConnell]

Mr. Massey,

Beware the notorious academic trap of static thinking. This is far too dynamic an issue to rest on the structural reorganization precedents of Raven. Policy and legal analysis is inherently political argument. Thus the statement that politically appealing outcomes often create bad law is essentially meaningless as universal political appeal and absolute judicial objectivity do not exist. Perhaps they are out there somewhere, much like Bertrand Russell's celestial teapot, but it cannot be proven. Let us see what the court decides.

With all due respect,

[Jackson H]

Thanks for your patience with all of us, Professor Massey. I'm sure you understand that this is a controversial issue, so emotions are running hot.

I highly recommend that everyone read the City of San Francisco's brief in /City of San Francisco v. Horton/, which also challenges Prop 8. It might even change your mind, Professor Massey. PDF version can be found here: http://pdfserver.amlaw.com/ca/prop81106.pdf

[Michael Ejercito]

Of course these issues are political, and the California Supreme Court may break new ground in defining a revision.
Historically, courts have had a very narrow interpretation of what a revision is; otherwise they would have veto power over constitutional amendments, over the very constitution that they are to interpret.

The revision argument might have more weight in the case of an initiative amendment allowing bigamists but not homosexuals to marry persons of the same-sex.

[Teo]

An additional point is made in the City of San Francisco's brief in City of San Francisco v. Horton that has not been explicitly brought up here; namely, that
'the cruel and unusual punishment clause requires the judiciary to assess popular opinion when determining if a punishment is "cruel" or "unusual" '
whereas
'Equal protection, on the other hand, exists to protect minorities against the whims and prejudices of political majorities. It is, by its very definition, countermajoritarian and uniquely dependent on judicial review for its enforcement. Giving a bare political majority final say over the meaning of the equal protection clause would eviscerate it. And that would be inconsistent with the constitutional structure established long ago in this
State'

Regards

[Fernando P. Orlandi]

Professor Massey,

You are quoted in today’s Examiner as saying: ‘What we are told is that Moreno is very likely to strike down Prop. 8, and that Kennard thought that the whole challenge was trivial, the rest of the votes are up in the air.’

I would be curious to know who gave you that information. I thought that the Justices meet behind closed doors, and that their deliberations are secret.

Thanks you for your time.

[Calvin Massey]

For the record, I did not make the statement attributed to me in the SF Examiner as quoted by Mr. Orlandi. The Examiner has agreed to print a correction in tomorrow's edition. I have no inside knowledge of how the justices of the California Supreme Court may be inclined to vote on the pending case involving Proposition 8.

[Bill]

The Court's decision was based on an interpretation of the Equal Protection Clause, a provision that is notoriously ambiguous, and therefore open to different interpretations by reasonable people (hence the 4-3 origional decision).

However, an opinion is not the same as the text of constitution... it is just an interpretation and application of the text to a particular case in time. An opinion is technically only binding to the case at hand... it does not actually alter the text of the constitution. That means that the constitution itself was not reprinted to now included a right to gay marriage. The court does not actually have the power to alter the actual text of the constitution... it can only interpret existing text. Yes, unless overturned by a future court, a decision such as this has the "practical effect" of being an amendment to the constitution but it is in fact just an opinion.

Prop 8 actually altered the text of the constitution by adding 14 words. These words are unambiguous and provide assistance to the Court as to the meaning of the rest of the Constitution, especially vague provisions such as the equal protection clause.

The constitution belongs to the people. The constitution creates the court and authorizes it to uphold and defend the constitution of the people. Thus the court depends on the constitution for its very authority. It does not exist outside or above the constitution.

Prop 8 does not contradict any express provision of the constitution. Yes, it contradicts an opinion of the court concerning the equal protection clause but that is not the same thing as contradicting the existing text of the constitution.

The court now has more guidance to properly interpret the equal protection clause. As long as there is a rational way to reconcile Prop 8 with the text of the equal protection clause, then it must be a valid amendment. Of course, there is a valid way to do that but it requires the court to modify its original opinion so that it is now consistent with the full constitutional text.

The constitution no where expressly identifies a fundamental right to marriage in general or gay marriage in particular. These were inferences drawn by the court based on past marriage decisions and a lack of further guidance from the constitutional text.

For the court to give an opinion the same weight as the constitutional text effectively gives 4 justices the right to amend the constitution. This would place their interpretations and opinions outside, even above, the constitution, which they are not. They are servants of the people, called to uphold the people's constitution, whether they agree with it or not.

Does this mean a majority could in theory strip a fundamental right from a suspect class? In theory yes. But why would a majority strip a fundamental right from a suspect class if they had already expressly given them that right in the constitution? It is hard to imagine that the authors of the ratifiers of the 14th amendment intended to create a right to gay marriage and make homosexuals a suspect class and then decades later, the people of California had actually become LESS sympathetic to gay rights. Normally, sympathy for gay rights increases over time. Of course, what happened is that the court CREATED a new fundamental right and suspect class that the people never authorized them to create and they are being forced to embarrass the court for failing to do the job they were entrusted with.

Californians apparently have a great deal of confidence in the wisdom of the majority and a sensitiviy to judicial tyrrany, when the court attempts to usurp the rights of the people to rule themselves. Thus they allow amendments with simple 50% votes. A little too simple for my taste, but then again, if I lived in a state where the justices do not take their duties seriously but instead imagine themselves as little kings ruling over the state rather than servants merely interpreting the people's laws, then maybe I understand why they make is so easy to let the court know when they are failing in their duty.

[Bill]

By the way, the valid way to reconcile Prop 8 with the equal protection clause that would require the court to slightly modify its earlier ruling is simply to argue (as the defenders of Prop 22 originally did) that the laws does give gays equal rights. They have the same rights to marry someone of the opposite sex as straights. Of course, as the Court noted in their opinion, that would require gays to "negate" their sexual orientation.

True, I suppose. But that, in and of itself, does not mean that Prop 22 or Prop 8 violate equal protection... it simply means the the constitution doesn't consider sexual orientation to be a sufficient excuse to claim that one's marriage rights are being denied when the law requires everyone to marry someone of the opposite gender.

The people are free to weigh the "hardship" this creates for gay people versus the value of man-woman marriage to society and decide where to draw lines.

There is no NECESSARY contradiction between Prop 8 and Equal Protection. There are plausible ways to reconcile them. If the court needs help, someone can send the Scalia's phone number.... I'm sure he could write an opinion for them.

[J.T.]

Honestly I don't believe this issue can be decided in the courts. I have a feeling that California would have been more likely to vote for gay marriage had there not been the court decision to begin with. If there is a vote in 2010, chances are that gay marriage will be legalized.