GayCityNews - California Supreme Court Upholds Prop 8

GayCityNews - California Supreme Court Upholds Prop 8

By:ARTHUR S. LEONARD
05/26/2009
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The California Supreme Court, on May 26, ruled that Proposition 8, the measure approved by voters there on November 4 to amend that state's constitution to provide that only marriages between a man and woman would be "valid or recognized in California," was not subject to challenge as an improper constitutional "revision," and so was properly enacted through an initiative amendment.

Only one member of the court, Justice Carlos Moreno, dissented from this conclusion.

However, the court unanimously ruled that those couples -- roughly 18,000, by most estimates -- who married in reliance on its May 15, 2008, marriage decision, between mid-June and November 4, had "vested rights" in their marital status that could not be retroactively invalidated without raising serious due process concerns. Therefore, those marriages remain valid in every respect.

Chief Justice Ronald George wrote for the majority of the court, producing a decision signed by five judges of the seven-member bench. Justice Kathryn Mickle Werdegar wrote a separate opinion, agreeing with the court's conclusion that Prop 8 was validly enacted, but differing from the majority on what the appropriate test is for determining whether a proposed amendment is a revision.

Under the California Constitution's amendment process, a proposal to "amend" the Constitution by initiative can be placed on the ballot through petitions if they are signed by at least eight percent of the total number of voters in the most recent gubernatorial contest. However, a proposal to "revise" the Constitution may only get to the ballot through one of two procedures -- either by a supermajority vote of the Legislature or in a state constitutional convention. Anything placed on the ballot, either an initiative amendment or a revision, requires only a majority of those voting to be enacted.

Proposition 8 was certified for the ballot shortly after the State Supreme Court's marriage equality decision last May 15. In that ruling, the court found that same-sex couples are entitled to marry. Because the right to marry is fundamental and sexual orientation is a "suspect classification," for which the state must provide a compelling rationale for any disparate treatment, the burden on the state was to provide a compelling reason for excluding same-sex couples from civil marriage. The state did not meet it burden, in the eyes of the court's majority.

The court rejected the state's argument that providing domestic partnership for same-sex couples, carrying almost all the rights of marriage, was sufficient to meet the constitutional standard.

The proponents of Proposition 8 petitioned the court to delay implementing its marriage ruling until the election, but the court turned them down. On the other hand, Prop 8 opponents sought to throw the measure off the ballot as a revision rather than an amendment, but the court dismissed their petition as well.

After Prop 8 passed with about 52 percent of the vote, several lawsuits were filed challenging it. Although the court refused to block Prop 8's implementation pending a decision, it did agree to expedite its consideration of the challenge, and heard arguments in March.

Chief Justice George's opinion, although spanning 135 pages and extensively discussing the initiative amendment process, essentially boils down to the conclusion that to be a revision, a proposition must either significantly affect a large number of constitutional provisions or cause a substantial change in the basic plan of California government.

George found that Prop 8 affected only a handful of constitutional provisions, adding a 14-word definition of marriage to the Constitution, so the measure would not be deemed a "revision" under the "quantitative test." As to the "qualitative" standard, he found that Prop 8 did not substantially affect the basic plan of California government.

George reached this conclusion after asserting, as he had suggested in questioning during the oral argument, that Prop 8 had little effect on the provision of substantive legal rights to same-sex couples in California, where the Legislature had previously provided for domestic partnerships that carry almost all of the rights, benefits, and responsibilities of marriage under state law. While the marriage equality ruling last May made much of the significance of withholding the term "marriage," the new ruling minimized its significance.

George essentially interpreted Prop 8 as doing no more than eliminating some terminology. He asserted that the initiative left intact the balance of last year's decision, including the court's holding that same-sex couples are entitled to all the rights and benefits of marriage. The earlier-enacted Domestic Partnership Law, which survives Prop 8, is not a matter of "legislative grace" but, in the wake of last May's ruling, a matter "of state constitutional right."

However, in Prop 8's aftermath, the substantive right to marry the court identified last year should be re-characterized as the right to have legal recognition for a couple's relationship carrying all the rights and benefits associated with marriage, but without using that term. All that Prop 8 did, George concluded, was "carve a narrow exception" out of the privacy, due process, and equal protection principles the court relied on last year. That exception did not have a substantial enough impact to constitute a change to the basic plan of government, in his view.

Citing past rulings upholding amendments on the death penalty and local government taxing authority, George asserted, "Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions."

George found Attorney General Jerry Brown's separate challenge to Prop 8 as an improper attempt to modify an "inalienable right" as "flawed" and based on long-discredited 19th-century natural law theories. The chief justice found no support for the contention that rights identified in the State Constitution as "inalienable" were somehow insulated from the initiative amendment process, pointing out several past occasions on which the court upheld amendments modifying rights derived from the same portion of the Constitution.

Justice Werdegar disagreed with George's conclusion that the court's prior cases on the amendment/ revision issue had clearly established that the only qualitative measure was a proposition's impact on the structure of government. She pointed to past decisions suggesting that a significant impact on a fundamental right could also be deemed a revision. She agreed, however, with George's contention that Prop 8 did not have that sort of fundamental impact on the rights of same-sex couples to gain legal recognition.

Justice Moreno, seizing on the same prior cases Werdegar cited, found that the court's ruling had significantly undermined the guarantee of equal treatment by the government, and thus was actually a revision of the state's equal protection clause.

"I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus 'represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a "revision" of the state Constitutional rather than a mere "amendment" thereof,'" Moreno wrote.

He went on to argue that the ruling was not just a defeat for same-sex couples, but for all minority groups who rely on the court to protect their right to equal treatment under the law.

Moreno also challenged head-on the argument that Prop 8 was a "narrow" or "limited" exception to the Constitution's equal protection argument. "The passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description," he wrote.

Tellingly Moreno added, "But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment... Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights."

Surprisingly, in light of the 5-4 vote last year, the court was unanimous in concluding that Prop 8 could not be read to retroactively invalidate the 18,000 marriages of same-sex couples performed prior to the passage of Prop 8. Amendments under consideration are presumed to be prospective, George argued, and the Prop 8 proponents' argument that they had made clear in their election campaign that the measure was intended to deny recognition to same-sex marriages "wherever and whenever" they were performed did not adequately communicate to voters that they were being asked to invalidate existing marriages.

More significantly, the court was troubled by the idea that couples who relied on its past decision and the state of the law when they married could be retroactively stripped of that status. According to George, once a marriage takes place the participants acquire "vested rights," and such rights cannot be taken away without due process of law, which would not be satisfied by an election campaign and an initiative vote.

The court took no position about whether the state would have to continue to recognize marriages performed elsewhere during that window period of June 16-November 5, 2008, stating in a footnote that none of the petitions presented to the court had raised the question.


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