California Supreme Court to hear Oral Argument on Proposition 8
Submitted by J Boogie [TLL] on Wednesday, 4 March 2009Comments
Tomorrow, the California Supreme Court will hear oral argument on the now-infamous Proposition 8. For those visitors from other parts of the country, or our international friends, here is a quick summary of what Proposition 8 is all about. Proposition 8 was a state ballot initiative (citizen sponsored bill put up to a +1 vote during the election) which stated that only marriage between a man and a woman is valid or recognized in California. The initiative passed on Election Day, by a surprisingly wide margin. Immediately after, several challenges to Prop. 8 were filed directly in the CA Supreme Court. The challenges are based upon Constitutional theories. First, is Prop. 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? Second, does Prop. 8 violate the separation of powers doctrine under California law? And the third issue is, if Prop. 8 is NOT unconstitutional (i.e. it IS constitutional), what is its effect, if any, on the marriage of same sex couples before it was adopted?These issues, once resolved, will have long lasting and far reaching effects. The amicus briefs filed have been an interesting read. The TLL staff were honestly pretty shocked that Prop. 8 even passed. California has been the bastion of the homosexual movement for a long time. With what seems like a highly liberal populace, many thought it would be a sure fire defeat for 8. But as the polls closed, the reality of the situation began to hit that election night. While the majority of the country was out celebrating the election of President Barack Obama, many Californians were experiencing the mixed emotions of President Obama’s win, coupled with the gut-wrenching feeling of seeing yet another (albeit not in the traditional sense) minority group’s rights be taken away. California that night, officially became a state filled with a bunch of haters.
The price that California paid to give Obama our electoral votes was high: many minority groups who voted Obama also voted Yes on Prop. 8. And so we find ourselves here, a day before the argument that many are anticipating with bated breath. For these complex constitutional issues, TLL has the following thoughts.
- The revision rather than amendment issue – The main difference here between revision and amendment is this – a revision requires a 2/3 vote of the Legislature before being put before voters, whereas an amendment, which can best be thought of by analogizing to the amendments to the Federal Constitution, requires much less, because California voters can amend the state Constitution though a ballot measure (dumb idea). That being said, does the language of Prop. 8 amend or revise? From our scrutiny over the issue, the language of Prop. 8 seems to revise the Constitution. A revision occurs when there is a change to the underlying principles of the Constitution. California specifically regarded the right to marry as a fundamental one, which meant it was applicable to both heterosexuals and homosexuals. The underlying principle is that all citizens, regardless of sexual orientation, had the right to marry under the prior constitution. No one class was specifically excluded by the language. Thus, the passage of Prop. 8 changed the underlying principle of Equal Protection by excluding and denying a specific type of person from enjoying that right (marriage). If Prop. 8 were simply an amendment, then it would have been able to exist with the other constitutional provisions without any conflict. But Prop. 8 clearly conflicts with the prior version of the Constitution, and thus should not be considered an amendment. (This is just our initial interpretation, and bear in mind that without our precious Lexis and Westlaw, our ability to research this issue and those below was hindered and limited) For a complete listing of the amicus briefs, and updated info, please go here.
- The separation of powers issue – This one is also very complex, very tricky. The separation of powers doctrine essentially stands for the idea that certain branches of the government are meant to handle specific things, and by crossing that line, one branch oversteps its boundaries. Ok, so how does Prop. 8 potentially violate this doctrine? The argument is that the passage of Prop. 8 was done by voter initiative, which means that voters have made a decision regarding a fundamental right (marriage). However, the framers of the constitution, both state and federal, assigned the interpretation of fundamental rights to the Judicial branch of government. By allowing a voter initiative to pass and affect (i.e. take away) a certain group’s rights, the protection of those rights was taken out of the hands of the judiciary and placed in the hands of someone else. Equal protection and fundamental rights are meant to protect the minority against the majority will, and the judiciary has been given the role of arbiter. But in the case of Prop. 8, the court has been left out of the loop this time. The problem is the actual voter-initiative system California has in place. It allows a simple +1 majority to bypass both the legislature and the judiciary by claiming that the sought after changes are amendments and not revisions. There is clearly something wrong with this picture.
- The status of same-sex marriages if Prop. 8 is not deemed unconstitutional – The issue here is just as volatile and murky as the other two. The application of Prop. 8 to retrospectively wipe out the marriage status of the thousands that married legally at the time would take away rights of the couples who legally married under existing law. There are countless harms that would result from the stripping of marriage status from same-sex couples. Marriage is, among other things, an expectation of permanence on the part of the two people who get married. Their rights should not be abrogated because of a law that passes after the fact. This strikes me as being similar (at least in the basic premise) to an ex-post facto law. You shouldn’t be able to go back and nullify what was done legally at the time. Further, the invalidation of legal same-sex marriages would be both primarily retroactive and secondarily retroactive. A primary retroactive effect alters the past legal consequences of past actions, here the actual marriage. A secondary retroactive effect alters the future legal consequences of past actions, and in this case, affects the future marriage status of the couple. Invalidation would affect both, and there is no reason that the a legal marriage should be invalidated.
The California Supreme Court will begin hearing oral arguments tomorrow, Thursday, March 5th, from 9 am to 12 pm. Decision is to be handed down within 90 days. TLL will have a full breakdown of the opinion once released, so keep an eye out.
-TLL
